MUNRO and TOWN OF VINCENT
[2006] WASAT 103
•27 APRIL 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MUNRO and TOWN OF VINCENT [2006] WASAT 103
MEMBER: MR J JORDAN (MEMBER)
HEARD: 31 JANUARY 2006
DELIVERED : 27 APRIL 2006
FILE NO/S: DR 598 of 2005
BETWEEN: BRANDON MUNRO
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning – Development refusal – Rear survey strata battleaxe lot approved – New rear group dwelling – Upgrading existing dwelling on proposed front lot – New dwelling two-storeys with loft – Amended plans – Application of locality policy – Parapet walls on three boundaries – Setback of upper level – Comments from neighbour – Local character – Streetscape – Bulk and scale of development – Cumulative effect of design elements
Legislation:
Metropolitan Region Scheme
Town Planning and Development Act 1928 (WA), s 88(1), s 88(3)
Town of Vincent Town Planning Scheme No 1, cl 18 cl 38(5), cl 47
Residential Design Codes of Western Australia 2002, cl 3.3.2, cl 3.3.2 A2, cl 3.3.2 , cl 3.3.2 P2, cl 3.7.1 A1.1Table 3, cl 3.8.1 A1, cl 3.8.1 P1
Result:
1. The application for review is allowed
2. Planning approval is granted for the proposed grouped dwelling development set out in the plans of 6 December 2005, subject to conditions, including the upper level of the southern wall being set back 1.03 metres from the boundary
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr J Meggitt
Solicitors:
Applicant: Self-represented
Respondent: As Agent
Case(s) referred to in decision(s):
Willicombe and City of Gosnells [2006] WASAT 13
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
In July 2003, Mr Brandon Munro received approval from the Western Australian Planning Commission to subdivide No 14 Auckland Street, North Perth into two survey strata lots. The existing house on the land would be on the front lot and at the rear would be a battleaxe lot which would have on it the existing swimming pool.
Mr Munro then applied to the Town of Vincent for planning approval to build a new two‑storey grouped dwelling around the swimming pool on what would become the rear lot. The Town of Vincent refused the application. The Town said the proposed dwelling would be in conflict with its policy for the locality because the design would have an adverse impact on local character and amenity.
Mr Munro made some amendments to the plans, but said that aspects of the design, such as the roof line and the parapet walls, were consistent with the intent of the policy and the relaxation of standards required would have minimal impact on local character and amenity.
The Tribunal considered the elements of the proposed development in dispute and found that, if the upper level of the southern wall were set back 1.03 metres, the overall design would be consistent with local character and amenity and therefore consistent with the policy. The Tribunal granted conditional approval for the proposed development.
Introduction
This is an application by Mr Brandon Munro (applicant) for review of the refusal by the Town of Vincent (respondent) to grant planning approval for the development of a second grouped dwelling on Lot 204 (No 14) Auckland Street, North Perth (subject land). The subject land has a parallelogram shape as the northern and southern boundaries are east west and the western, front, and the rear eastern boundaries run north west to south east. The subject land is 13.4 metres wide, has a sewer easement across the rear and an area of 675 square metres. At the street frontage is the original single storey house of weatherboard with an iron roof.
Background
In 2003, the applicant lodged with the Western Australian Planning Commission (WAPC) two concurrent survey strata subdivision applications for the subject land. One application was for two lots of equal frontage to Auckland Street and the other was for a battleaxe configuration with the existing house to remain on the front lot and the swimming pool to be situated on a new rear battleaxe lot. The respondent recommended to the WAPC that the first of these two applications be refused, but that the battleaxe configuration be approved.
In July 2003, the WAPC granted conditional approval for both applications. Survey strata subdivision reference 43503 will result in rear Lot 1 of 317 square metres, Lot 2 of 274 square metres at the street frontage and common property of 84 square metres which is effectively the driveway along the southern boundary providing access to rear Lot 1.
The subdivision approval was subject to conditions which included:
"11.The existing dwelling to comply with the requirements of the Residential Design Codes pertaining to the development of grouped dwellings to the satisfaction of the Western Australian Planning Commission, including:
(i)the provision and construction of 2 car bays under Clause 3.5.1 of the Codes; and
(ii)the provision of a permanent enclosed storage area and adequate provision for rubbish storage under Clause 3.10.3 of the Codes.
(iii)the provision of a 24 square metre courtyard, with a minimum dimension of 4 metres. (LG)
12.The applicant obtaining a development approval for the whole site which provides for the conversion of the existing dwelling to a grouped dwelling standard and the upgrading of the external dwelling appearance in accordance with the requirements of the Residential Design Codes and Council's Town Planning Scheme and such works being completed to the satisfaction of the Western Australian Planning Commission prior to endorsement of the strata plan."
In November 2004, the applicant lodged with the respondent an application for approval to commence development of "an Additional Two‑storey with Loft Grouped Dwelling and Demolition of Existing Garage and Two (2) Outbuildings". The new grouped dwelling would be on proposed Lot 1. Following discussions with officers of the respondent, the applicant produced amended application plans dated 24 May 2005.
The respondent refused the application at its meeting of 28 June 2005 because it considered the development to be contrary to its policy for the locality and because the existing house would not meet the parking, outdoor storage and outdoor living area requirements for a grouped dwelling.
The applicant then filed the instant application for review of this decision. At the directions hearing of 16 November 2005, orders were made for a final hearing in the matter on 31 January 2006. Notwithstanding the listing of the matter for a final hearing, the orders also included:
"2.The applicant is to provide to the respondent by 5 December 2005 the additional information discussed at the directions hearing for presentation to the Council for consideration of consent orders."
The applicant then prepared amended plans, dated 6 December 2005, addressing various matters raised by the respondent.
At its meeting of 20 December 2005, the respondent resolved not to support the development shown in the 6 December 2005 plans for the reasons:
"(a)the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
(b)the non‑compliance with the Outdoor Living Area, Buildings on Boundary, Setbacks and Privacy requirements of the Residential Design Codes, and the Town's Policy relating to the Eton locality, respectively; and
(c)the open space provision requirements proposed to be varied as specified in the Town's Policy relating to Non‑Variation of Specific Development Standards and Requirements."
At the final hearing in the matter, it was common ground that the development before the Tribunal was that shown in the plans date stamped 6 December 2005. The proposed new grouped dwelling could be described as two two‑storey sections, one to the west of the pool, the other to the south of the pool, with a connecting section that includes an entrance foyer, passageways and stairs.
The plans showed the new dwelling to include:
•Cellar
•Ground floor – double garage/store; games room; laundry; entry foyer; dining area; living area; kitchen; study; lavatory
•First Floor – Master bedroom with en suite; three single bedrooms; bathroom; separate lavatory
•Loft – Studio
Planning framework
The subject land is zoned "Urban" under the Metropolitan Region Scheme and "Residential" under the respondent's Town Planning Scheme No 1 (TPS 1). At the time of the subdivision approvals in July 2003, the permitted site density was R30 and R30/40 in this locality. TPS 1 has subsequently been amended and the locality, including the subject land, now has a density coding of R20. The zoning table of TPS 1 shows grouped dwelling as a "P" (permitted) use in the residential zone.
Clause 18 of TPS 1 requires development of land in accordance with the standards and requirements contained in:
" … the scheme text, the scheme map, the policy applying to the land proposed to be developed, the planning policies and the Residential (Design) Codes."
Subclause 38(5) of TPS 1 also list these considerations and adds as matters to be considered in the determination of an application:
"(f)any submissions accompanying or related to the application;
(g)the orderly and proper planning of the locality;
… and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
Under power available in cl 47 of TPS 1, the respondent has adopted, relevant to this locality, Policy No 3.3.7 "Eaton Locality Plan 7" (policy).
The policy states:
"New contemporary developments are encouraged provided that the design responds to the established character. The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location and orientation.
Buildings should be set back from all boundaries in generously landscaped gardens. Additionally, priority will be given to ensuring that new infill and new housing developments do not result in a loss of privacy or amenity for existing residents."
The Residential Design Codes of Western Australia 2002 (Codes) are incorporated into TPS 1 by reference. Particularly relevant to this matter are Element 3 "Boundary Setbacks" which includes cl 3.3.2 "Buildings on the Boundary", Element 7 "Building Height" and Element 8 "Privacy".
Planning issues
Mr John Meggitt, a consultant planner appearing for the respondent, said the respondent "encourages infill development in the form of contemporary new housing at the rear of established houses but it is necessary that the new development responds to the established character of the Policy area". The proposed development, he said, does not comply with the requirements of TPS 1, the policy or the Codes and so would have an adverse impact on the amenity of the neighbours and the character of the policy area.
The applicant said that relaxation of some rigid standards is required to accommodate a family home on the proposed rear lot, particularly in the light of the wish to retain the existing swimming pool in the north east corner. He considered the resultant development would not threaten the character of the locality or have an adverse impact on the local amenity.
Mr Meggitt acknowledged that the design had been amended from that originally submitted, but still considered the level of compromise on the policy requirements to be too great.
At the hearing the parties addressed those aspects of the proposed development still at issue and what they considered was the cumulative effect of these. To illustrate their respective points of view, both parties provided photographs of selected developments in the locality.
Height
The height of the proposed development is not itself an issue. The proposed dwelling at 7 metres to the ridge and more than 25 metres from the street, complies with the overall height requirements of cl 3.7.1 A1.1 Table 3 of the Codes and with the policy. The policy states:
"A general height limit of two‑storeys (including loft) can be considered provided the second storey (including loft) is generally setback a minimum of 6 metres from the street and the amenity of the area is protected in terms of privacy, scale and bulk."
That the proposed new dwelling would be two‑storeys, however, is a design feature to be borne in mind when considering other elements in dispute, such as setbacks, roof design, bulk and character of the locality.
Overlooking is also a concern with two-storey developments. The applicant addressed overlooking in the plans for all upper floor windows except the west facing window of bedroom 2. The direct line of sight within the cone of vision from this window is 2.2 metres from the boundary with the lot to the south. The Codes at cl 3.8.1 A1 stipulate a setback of 4.5 metres as an acceptable development standard. The window also does not meet the performance criteria of cl 3.8.1 P1 as the overlooking is of outdoor living areas of the neighbouring property. A condition that requires appropriate screening of this window would overcome this problem with the design.
Roof
Both Mr Meggitt and Mr Munro divided the roof of the existing house into the main roof, said to have a pitch of 25 degrees, the roof of the enclosed verandah at the side with a 10 degree pitch and the skillion at the rear with a 5 degree pitch. The respondent argued that the roof of the new dwelling should be modelled on the main roof, whereas the applicant considered a reflection of the skillion roof should be acceptable.
The policy says:
"New contemporary developments are encouraged provided that the design corresponds to the established character. The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location and orientation."
The existing house will remain at the street frontage and this presents a prominent gable end to the street. Behind, the proposed section of the new dwelling west of the pool would reflect this to a degree with the apex of a 7 degree pitched roof above a flat west facing wall. The section south of the pool presents to the street two flat roof lines at different heights and from the south the roof of this section could be described as a skillion.
The policy encourages "new contemporary design" and the Tribunal therefore is of the view that the respondent must accept that not every development will have a roof at a pitch which simply replicates that of other houses in the street. The roof of the new dwelling would be different from others in Auckland Street, but the Tribunal considers that it is not so out of step with the policies that it compromises the character and amenity of the locality.
Setbacks
The respondent argued that the parapet walls of the new dwelling, on the northern, southern and the western boundaries of the proposed rear survey strata lot, would be in conflict with the policy requirement that buildings "should be set back from all boundaries in generously landscaped gardens".
For the northern boundary, the Tribunal considers the nil setback to the store wall to be acceptable. The store wall complies with cl 3.3.2 A2 of the Codes in terms of height and length, and would comply with the performance criteria of cl 3.3.2 P2, which require efficient use of space, enhancement of the use and amenity of the development, and no significant adverse effect on the neighbour to the north. The property to the north has a garage with a parapet wall on the common boundary with the subject land. This garage would not abut the proposed store as preferred by the Codes, but the Tribunal has noted that it would be forward of and would screen to a large extent any view of the store room wall from the street.
The remainder of the northern wall is set back from the boundary 1.2 metres rather the required 1.5 metres for a two‑storey wall. This reduced setback is also considered to be acceptable because it also meets the performance criteria of cl 3.3.2 P2.
The wall on the proposed western strata boundary is also considered acceptable. The wall is single story and complies with the length and height requirements of cl 3.3.2 of the Codes. This wall is also an "internal" wall of a grouped dwelling development and the adjacent grouped dwelling will be set back 1.5 metres from the boundary with a separate open space area provided in accordance with the Codes.
The south wall setback would be nil at the ground floor. At the first floor, the 5.1 metre long wall of bedroom 4 would have a nil setback. The wall of bedroom 2, also 5.1 metres long, would be set back 1.030 metres. Mr Meggitt described the two‑storey parapet wall as having a height at the boundary of between 5.7 metres and 5.9 metres. He said this wall, particularly, was not consistent with the policy requirement for side boundary setbacks and there would be an undue impact on the amenity of the neighbouring property to the south.
The applicant consulted with the neighbour next door to the south at 12 Auckland Street. In a letter dated 15 November 2005, to the Tribunal and the respondent, that neighbour, Mrs Audrey Bettega, wrote saying that during the advertising period she had objected to the proposed development on the subject land, but had since reached a resolution with the applicant. This required the plans being amended to remove a balcony accessed from the loft, aesthetic changes to the wall on the boundary and new fencing. These changes, she said, "resolved my previous concerns with the design". Mrs Battega said she had seen the "most recent plans" and "gave consent" to the application proceeding.
It is relevant that there was a positive endorsement with full knowledge of the proposed plans from the neighbour to the south but, as always, the appeal must be determined by relevant planning considerations.
Overshadowing is not an issue as the proposed development would comply with the requirements of the Codes. Of more concern to the Tribunal is how buildings address the policy requirement for buildings to be set back from the boundaries.
The development on the southern boundary would be visible from the street. From the submissions of the parties, the Tribunal has formed the view that a ground floor parapet wall can be supported. It is considered the policy requirements of impact on the amenity of the neighbour and on the streetscape would be adequately addressed. This is because of the setbacks of other rear grouped dwellings in the street, shown in the photographs provided and the setback of the wall 36 metres from the street. The performance criteria of cl 3.3.2 P2 are also considered to be adequately addressed for a lot of the size proposed. That is, there would be efficient use of the ground floor open space, the amenity of the development would be enhanced thereby and there would not be any significant adverse effect on the neighbour to the south.
At the first floor level, the respondent required the southern wall to be set back to comply with the policy and for the setback to be 1.5 metres to comply with the Codes. The applicant argued that this would result in a loss of bedrooms, because they would become too narrow, making the house unsuitable for the family purpose intended. The applicant did say that the required level of accommodation could just still be provided if the first floor were set back 0.5 metres. The applicant also referred to the neighbour's comments about acceptance of the proposed parapet wall.
The Tribunal considers that all of the southern first floor wall should be at the setback of 1.030 metres of bedroom 2. This, it is considered, would assist in reducing the impact on the amenity of the neighbour to the south, and reflect setbacks on other boundaries of the subject land and of other developments in the locality. This would also reduce the sheer appearance of the wall from the street. The result would be more consistent with the character of the locality and therefore be more consistent with the intent of the policy. The Tribunal also considers there is some merit in the respondent's submission that the proposed dwelling would still have sufficient floor space to provide an adequate level of family accommodation.
Bulk and scale
The respondent considered that the resultant bulk and scale of the proposed rear dwelling would be inconsistent with the policy because there would be two‑storeys with inadequate setbacks and "blocky" appearance in a locality of largely single houses.
The applicant disagreed, referring to the articulation in the design of the two parts of the house, in both plan and elevation. With the adjustment to the setback to the first floor southern wall set out above, the Tribunal is persuaded that the design is such that it will not result in a development of unacceptable bulk.
The proposed dwelling will be similar in scale to other two‑storey developments in the street, including that adjoining to the south. It will obviously be larger than the existing house on the subject land and the house to the north but, given the comments above on height and bulk, together with a minimum setback from the street of about 25 metres for the western section and about 35 metres for the southern section, it has been concluded that the proposed new dwelling would not be out of scale in this locality.
The front house
The respondent raised at the hearing the need for the front house to comply with the requirements of the Codes so that conditions 11 and 12 of the subdivision approval, cited above, could be met. The applicant said the sketch of December 2005 showed the required two parking bays and he would make amendments to provide the necessary storage and rubbish bin areas and private open space of the correct dimensions and area.
Condition 12 requires the applicant obtain "… a development approval for the whole site which provides for the conversion of the existing dwelling to a grouped dwelling standard". This requirement is consistent with orderly planning as there will be one development sketch for the development. The application plans for the proposed development should therefore be further amended to include those items necessary to have the house on the front lot meet the required standard for grouped dwellings. Conditions can be imposed to achieve this.
Character of the locality
The respondent said it "encourages" infill development, but development consistent with its policy. Of concern was not that there would be a new rear dwelling, but that it would be of a design that would have an unwanted impact on the character of the locality. The respondent characterised the locality as one of predominantly older style single storey houses, interspersed with some of more recent origin and grouped dwelling developments, most with traditional pitched roofs and overhanging eaves. Emphasised from the policy was the statement about houses in landscaped gardens with side setbacks. Mr Meggitt acknowledged that two‑storey development had occurred, but down played its prominence. The respondent said the proposed dwelling does not include any of the elements required by the policy and so would not be consistent with the established character of the locality.
The applicant disagreed. He said the battleaxe subdivision enables the retention of an established house, which is indicative of the era in which the locality was developed. This option was chosen over the "down the middle" form of subdivision also approved by the WAPC but which would necessitate the demolition of the house. It was his submission that the proposed new house at the rear would not adversely affect the streetscape or local character because of the lack of homogeneity in the buildings in the locality. This was a result of the renovation of older houses and redevelopment resulting in double storey and single houses and grouped dwellings, all with variations in setbacks, roof lines and finishes. The proposed rear house was described as having roofing and wall materials selected to match the front house.
From the exchanges between the parties and the photographs, the Tribunal has formed the view that this is not a locality of homogenous character. Original houses in original condition appear rare and redevelopment appears to have been carried out by persons of quite different tastes. The image conveyed appears as a street of single houses of varying appearance, with obvious examples of two‑storey development and grouped dwellings.
As pointed out by the applicant, the proposed development includes retention of the existing dwelling at the street frontage and the new dwelling is a minimum of 25 metres from the road reserve. This arrangement of the buildings reduces the immediate impact on the streetscape and with the upper level setback adjusted as set out above, the Tribunal has concluded that the proposed development would not be out of character with the locality.
Conclusion
Mr Meggitt said that the respondent had introduced the policy in 1998 to prevent development of further examples of poor design and buildings without "traditional" features. The presence of these earlier developments should not, in his view, be included in any deliberation on the merit of the proposed development. Notwithstanding this, the locality does have a particular character and the Tribunal is of the view that if the development is consistent with the policy and not in conflict with the existing character and amenity of the locality it could be supported.
As set out under the headings above, the Tribunal has found that in each of the elements at issue between the parties, other than the southern wall upper level setback, the development is consistent with the intent of the Codes and the policy.
The overall impact of the proposed development, however, is the result of the cumulative effect of the approach taken to each of the performance criteria of the Codes and design elements of the policy. In Willicombe and City of Gosnells [2006] WASAT 13 the Tribunal stated at [29]:
"See also Plan Printing & Drafting v Glen Eira CC [1999] VCAT 1614 at page 6 and Green v Brisbane City Council & Anor [2002] QPELR 324 at [20] (per Judge Robin AC):
'I agree with Mr Haydon [of counsel]'s point that, even if, analysed individually, various elements of the development may appear acceptable, it is the combined effect and cumulative impacts that the Court must assess and have regard to.' "
The Tribunal has weighed the submissions from the parties on the elements of the proposed development, as set out above. In this instance, the Tribunal has concluded that cumulative effect of the elements of the proposed development will not result in an overdevelopment of the site. This, together with the conclusion reached on the bulk and scale of the development, and the resultant impact on the character and amenity of the character has led to the conclusion that conditional approval can be granted.
Conditions
At the order of the Tribunal, the respondent provided a schedule of conditions, without prejudice to its position, it would want imposed should the Tribunal be moved to allow the proposed development. The applicant advised of acceptance of all of the listed conditions except condition (iii)(a), which required the upper floor setback to be 1.5 metres from the southern boundary.
In the discussion above on the setback from the southern boundary, the Tribunal has agreed that this setback should be increased from nil, but that the set back can be 1.03 metres. Condition (iii)(a) therefore can be worded accordingly.
Not included in the schedule prepared by the respondent but which the Tribunal considers should be included, are conditions that will ensure the front house will be consistent with the minimum requirements for a grouped dwelling and a condition to address overlooking from bedroom 2.
Orders
1.The application for review is allowed.
2.That planning approval be granted for the grouped dwelling development set out in the plans dated 6 December 2005, but subject to the following conditions:
1.any new street/front wall, fence and gate between the Auckland Street boundary and the main building, including along the side boundaries within this front setback area, shall comply with the following:
a)the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
b)decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;
c)the maximum width, depth and diameter of posts and piers being 350 millimetres;
d)the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50% transparency; and
e)the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metres above the adjacent footpath level;
2.all external fixtures, such as television antennas (of a non‑standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive;
3.prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating:
a)the upper floor being set back a minimum of 1.030 metres from the southern boundary;
b)the southern boundary wall being a maximum average height of 3 metres and a maximum height of 3.5 metres;
c)screening of the west facing window of bedroom 2 ensure a minimum line of sight within the cone of vision of 4.5 metres to the boundary;
d)provision and construction of two on site car parking bays for the front dwelling;
e)provision of a permanent enclosed storage area and adequate provision for the storage of garbage for the front dwelling; and
f)the provision of a 20 square metre outdoor area, with a minimum dimension of 4 metres for the front dwelling;
4.first obtaining the consent of the owners of Nos 12 and 16 Auckland Street for entry onto their land, the owner of the subject land shall finish and maintain the surface of the boundary (parapet) walls facing Nos 12 and 16 Auckland Street in a good and clean condition; and
5.a detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Auckland Street verge adjacent to the subject properties, shall be submitted and approved prior to the issue of a Building Licence. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s).
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
0