Murphy and ANOR and Town Of Vincent
[2006] WASAT 322
•6 NOVEMBER 2006
MURPHY & ANOR and TOWN OF VINCENT [2006] WASAT 322
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 322 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:199/2006 | 14 AUGUST 2006 | |
| Coram: | MS J SMITHSON (SESSIONAL MEMBER) | 6/11/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The application for review be upheld The application be approved subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | ALAN PETER MURPHY CAROLINE MARY MURPHY TOWN OF VINCENT |
Catchwords: | Two grouped dwellings Approval for second dwelling only Side setback of upper floor Neighbour objections Overshadowing Loss of privacy Infill development Similar application subject of previous Tribunal decision Residential Design Codes of Western Australia 2002 Orderly and proper planning Application upheld |
Legislation: | Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia 2002 Town of Vincent Town Planning Scheme No 1 Town Planning and Development Act 1928 (WA) |
Case References: | Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4 Murphy and Town of Vincent [2006] WASAT 85 Nil |
Orders | 1. The application for review is upheld.,2. The decision of the Town of Vincent is set aside.,3. The development, as set out on the plans accompanying the development application and date stamped by the Town of Vincent as received on 16 May 2006, is approved subject to the following conditions:, (a) Prior to the issue of a building licence, plans shall be submitted and approved demonstrating any new street/ front wall, fence and gate between the Coogee Street boundary and the main building, including along the side boundaries within this front setback area, complying with the following:, 1. the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;, 2. decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2 metres above the adjacent footpath level;, 3. the maximum width, depth and diameter of posts and piers being 350 millimetres;, 4. 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, 5. 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. 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., (b) A demolition licence shall be obtained from the Town of Vincent prior to commencement of any demolition works on site., (c) An archival documented record of the place (including photographs, floor plans and elevations) for the Town of Vincent's historical archive collection shall be submitted and approved prior to the issue of a demolition licence., (d) A detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Coogee Street verge adjacent to the subject property, 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)., (e) The applicant/owner(s) shall advise (prospective) purchasers of the proposed dwelling site that if this development does not proceed, any subsequent proposed development shall comply with the relevant development requirements of the Town of Vincent Town Planning Scheme No 1 and the associated policies and the Residential Design Codes of Western Australia 2002, and it is not to be assumed that the Town of Vincent will support variations to the requirements., (f) Prior to the issue of a building licence, where vehicular access to the property is via a right of way and the right of way is not a public road, the applicant/owner(s) shall demonstrate (by submission of copies of the certificate(s) of title or original plan or diagram of the survey or other documentation) that the owner(s) and occupier(s) of the property have a legal right to use the right of way, to the satisfaction of the Town of Vincent., (g) Subject to first obtaining the consent of the owners of 157 Coogee Street for entry onto their land, the owners of the subject land shall finish and maintain the surface of the boundary (parapet) walls facing 157 Coogee Street in a good and clean condition., (h) The alfresco area shall be 100% open on all sides and at all times except where it abuts the east elevation of the proposed houses., (i) 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., (j) Prior to the issue of a building licence, plans shall be submitted and approved demonstrating the southern side of the balcony on the upper floor of Unit 1 being screened with a permanent obscure material and be non openable to a minimum of 1.6 metres above the finished ground/upper floor level. A permanent obscure material does not include a self adhesive material or other material that is easily removed., (k) Prior to the issue of a building licence, the subject land shall be amalgamated into one lot on the certificate of title; or alternatively, prior to the issue of a building licence the owner(s) shall enter into a legal agreement with and lodge an appropriate assurance bond/bank guarantee to the satisfaction of the Town, which is secured by a caveat on the certificate(s) of title of the subject land, prepared by the Town's solicitors or other solicitors agreed upon by the Town, undertaking to amalgamate the subject land into one lot within 6 months of the issue of the subject building licence. All costs associated with this condition shall be borne by the applicant/owner(s). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MURPHY & ANOR and TOWN OF VINCENT [2006] WASAT 322 MEMBER : MS J SMITHSON (SESSIONAL MEMBER) HEARD : 14 AUGUST 2006 DELIVERED : 6 NOVEMBER 2006 FILE NO/S : DR 199 of 2006 BETWEEN : ALAN PETER MURPHY
- CAROLINE MARY MURPHY
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Two grouped dwellings - Approval for second dwelling only - Side setback of upper floor - Neighbour objections - Overshadowing - Loss of privacy - Infill development - Similar application subject of previous Tribunal decision - Residential Design Codes of Western Australia 2002 - Orderly and proper planning - Application upheld
Legislation:
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia 2002
(Page 2)
Town of Vincent Town Planning Scheme No 1
Town Planning and Development Act 1928 (WA)
Result:
The application for review be upheld
The application be approved subject to conditions
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Mr Bain (Acting as Agent)
Solicitors:
Applicants : Self-represented
Respondent : SJB Planning and Urban Design
Case(s) referred to in decision(s):
Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4
Murphy and Town of Vincent [2006] WASAT 85
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 These proceedings concerned an application for review of the refusal by the Town of Vincent for an application for the development of a second dwelling at 153 Coogee Street, Mt Hawthorn.
2 The application was assessed by the Town on the basis of a decision on an earlier application for the proposed development of 2 two storey grouped dwellings on the site. The only issue of concern raised by the Town was the southern side setback for the upper floor of one of the dwellings (referred to as Unit 1) and being the subject of the current application. The second dwelling (Unit 2) has since been separately approved.
3 The applicants had submitted various applications for the site since 2004. Earlier applications with a minimum 1 metre southern setback were refused but, in 2005, the Town of Vincent approved amended plans. However, the Town’s approval contained a condition requiring the upper floor of Unit 1 to be set back a minimum of 1.9 metres, not 1.5 metres as applied for, from the southern side boundary.
4 The applicants lodged an application for review with the Tribunal against this condition. In its decision, the Tribunal determined that the condition be removed and the development could proceed with a 1.5 metre southern side boundary setback for Unit 1.
5 The current application for review for Unit 1 is substantively the same as the application previously approved by the Council. The only relevant difference is in terms of the southern setback, which is now proposed to vary from 1.1 metres to 1.8 metres, rather than the minimum 1.5 metres previously sought and approved by the Tribunal on review. In this instance, rather than imposing a condition requiring an increased southern setback, the Town refused the application.
6 At the hearing, the Tribunal was advised that the only issue of concern to the Town related to the southern setback of the upper floor of Unit 1. Furthermore, it was confirmed that this was the same setback that had been the subject of the Tribunal's previous decision, albeit the setback now varied from that the subject of the Tribunal’s decision.
7 Having considered the impact this setback would have, the application for review was upheld subject to conditions.
(Page 4)
Background
8 On 21 May 2005, the applicants lodged an application with the Town of Vincent (the Town) for the construction of two grouped dwellings at 153 Coogee Street, Mt Hawthorn (the site). The plans proposed a minimum 1 metre setback from the southern (side) boundary. On 6 July 2005, amended plans were submitted which increased the southern setback to a minimum 1.5 metres. On 23 August 2005, the Town approved the application with the amended plans, subject to a number of conditions. Condition (vii)(c) required the upper floor of the southern dwelling (Unit 1) to be set back 1.9 metres from the southern side boundary.
9 The applicants lodged an application for review with the Tribunal again, condition (vii)(c). In the decision of the Tribunal issued on 28 March 2006,Murphy and Town of Vincent[2006] WASAT 85, the Tribunal ordered that:
"The application for review is allowed such that condition (vii)(c) is deleted from the approval dated 23 August 2005 and the development set out in plans of 6 July 2005 can proceed as otherwise approved."
10 In the March 2006 review, the applicants requested that the Tribunal approve the original plans with a 1 metre southern setback. However, the Tribunal determined that:
"The Tribunal's role is to consider the reasonableness of the conditions imposed by the Council when deciding the application it had before it. It is not the Tribunal's role on review to consider the matter as a development proposal at large. The Tribunal has found that the 1.5 metre south side setback that was in the proposal that went to the Council can be supported."
11 The Tribunal, therefore, did not consider the merits or otherwise of reducing the 1.5 metre southern setback to 1 metre. Accordingly, in May 2006, the applicants submitted a new application for approval on the basis that the amended plans for Unit 1 approved by the Town in August 2005 were "compromise" plans that had been submitted to secure approval and in response to objections from the neighbours to the south. However, those plans did not totally reflect the design desired by the applicants.
(Page 5)
12 The May 2006 plans, the subject of this review, only vary however from those previously approved (and the subject of the Tribunal's previous decision), in that the southern side setback for the upper floor had been reduced from a minimum 1.5 metres to between 1.1 metres and 1.8 metres, as follows:
1. the garage for Unit 1 is set back 1 metre from the southern boundary to comply with the Residential Design Codes of Western Australia 2002 (the Codes). It was previously proposed, and approved, on the common boundary;
2. the street setback is 6.16 metres, whereas it was previously approved at 6.15 metres;
3. the family, dining and kitchen have been rearranged, however, the building configuration for these areas has not changed; and
4. some changes to openings on all elevations are proposed. However, these changes do not propose any further variations to the Codes or to the Town's policies.
13 The Town, through their witness, Mr Simon Bain, accepted that none of the changes to the approved plans were material other than the southern side setback for the upper floor of Unit 1.
14 The Town resolved to refuse the current plans for the following reasons:
1. The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality, particularly in terms of overshadowing and bulk and scale.
2. The non-compliance with the building setback requirements of the Codes.
3. Consideration of the objections received.
4. Non-compliance with the boundary setback requirements of the Codes in terms of the acceptable development standards and performance criteria.
(Page 6)
The site
15 The site is understood to comprise Lots Y294 and 295 (No 153) Coogee Street, Mount Hawthorn and has a total area of 625 square metres.
16 The site is zoned Residential R30 although housing in the surrounding locality is predominantly single residential interspersed with grouped dwellings. The adjoining property to the south contains two grouped dwellings built one behind the other.
17 The site is contained within the Mount Hawthorn Precinct under the Town's Planning and Building Policy Manual (Policy 3.1.1) and within the Ellesmere Locality under the Town's Residential Design Guidelines (Policy 3.3.5). Both policies contain general provisions to guide residential development, which is to be generally in accordance with the characteristics of the area and the intent of the R Coding. Infill development is favoured under Policy 3.1.1 on lots of similar size to the review site.
Issues
18 Mr Bain, a planning consultant, provided a witness statement to the Tribunal, which stated that there were numerous variations to the Codes sought which, whilst minor in nature, had a cumulative effect resulting in a dwelling that is bulkier and closer to the boundaries than is envisaged in the area. Furthermore, Mr Bain's statement advised that the development would be inconsistent with the pattern of development and amenity of the area and did not address the various requirements of the Town's policies. Therefore the development would have an adverse impact on the amenity of the area and, in particular, on the dwelling to the south.
19 However, the only aspects of concern raised specifically in Mr Bain's statement related to the southern side setback for the upper floor of Unit 1. During the hearing, Mr Bain confirmed that the only matter of concern to the Town was this southern setback.
20 It is also noted that the Tribunal, in the March 2006 decision ([2006] WASAT 85), determined that, in approving the proposed development, albeit with an increased southern setback, " … the respondent can be considered to have accepted that … the proposed development would be consistent with the objectives of Policy No 3.3.5 … ". This policy provides for infill development in the manner proposed.
(Page 7)
21 The applicants also provided photos and details of new infill development in the locality of a similar scale and form, documenting where two storey development was built with 1 metre setbacks to southern boundaries, many without any variation in this setback, unlike the application before the Tribunal.
The southern side setback
22 The proposed development has an upper floor setback for Unit 1 of between 1.1 and 1.8 metres from the southern boundary. By reference to the Codes, the Town determined that this setback should be a minimum of 1.9 metres, albeit a minimum 1.5 metre setback had previously been supported by the Tribunal.
23 Mr Bain argued that Unit 1 did not comply with the objective for Boundary Setbacks (Element 3) of the Codes in terms of loss of direct sun into, and the overshadowing of, the courtyard and living areas of the adjoining property to the south (151 Coogee Street).
24 The property to the south has been developed for two grouped dwellings, one behind the other. The main and only outdoor living area to the front dwelling is along the northern boundary and Mr Bain argued that the proposed setback for Unit 1 would reduce the amount of northern sunlight into this courtyard. Mr Bain also stated that the proposed development therefore does not demonstrate "the assistance of access to direct sunlight" as is required by the Codes.
25 Mr Bain stated that there was no demonstration by the applicants of how the impacts from building bulk were being addressed, nor how privacy is protected, but claimed that increasing the minimum setback would achieve this.
26 In reporting on the application to the Council, Town officers supported the southern setback proposed for the upper floor of Unit 1 of between 1.1 and 1.8 metres on the basis that the variations were "minor" and were considered "not to have an undue impact on (the) affected neighbour".
27 The plans, the subject of the current review, were not advertised with Town officers determining that this was unnecessary given similar plans had been previously advertised with the same concerns raised in the three objections received. These concerns essentially related to loss of privacy and overshadowing. In this regard, the officers' comments in response to these concerns are stated as being "not supported" as "the proposed
(Page 8)
- development is compliant with the overshadowing requirements of the R Codes and is not considered to have an undue impact on affected neighbours". Furthermore, in response to a previous concern raised in objections that the plans had insufficient information in terms of overshadowing and overlooking, the officers advised that: "the current plans have been amended to indicate correct overshadowing, overlooking and position of adjoining neighbours".
28 Plans were presented to the Tribunal by the applicants, which showed that increasing the upper floor southern setback from 1 metre to 1.9 metres made no difference in terms of the extent of overshadowing of the outdoor courtyard areas of the adjoining property to the south, given these courtyards immediately adjoined the site's southern boundary.
29 The applicants also advised that a 1.5 metre setback would result in some 9.2% of the adjoining site being overshadowed compared to the Codes' permissible overshadowing of 35%. Whilst the same analysis had not been done for a minimum 1.1 metre setback, the applicants contended it would still be substantially less than 35%. Therefore, complying with the setbacks sought by the Town would have no material improvement to the adjoining neighbour but would substantially compromise the design of Unit 1.
30 The technical assessment undertaken by the Town's officers concluded that the plans complied with the overshadowing requirements of the Codes. Mr Bain did not dispute this assessment.
31 In terms of having regard to the officer’s assessment, in Dalla Riva (Australia) Pty Ltd and Town of Vincent[2004] WATPAT 4, the Tribunal accepted that, irrespective of officer's recommendations, the decision at all times rests with the respondent (that is, the Town of Vincent). The Tribunal nevertheless noted that:
"When, however, the matter is addressed by the Tribunal on appeal there is proper scope to consider the reflective advice provided to the Respondent in the course of its consideration on and deliberations about the relevant application. It is in no way determinative of the matter before the Tribunal but nevertheless represents a matter to which regard ought to be had as a matter to be considered in the determination of this appeal. To the extent to which there is discretion and therefore an element of judgment, the views expressed on such matters by qualified planners are of assistance to the Tribunal."
(Page 9)
32 The objections of the rear southern neighbour (151B Coogee Street) to previous plans related to, inter alia, a concern with overshadowing and loss of northern sun in winter largely resulting from the parapet garage wall on the southern boundary of the site but also from the two storey development overall. However, in the plans the subject of review, the applicants have partially addressed this concern by providing a 1 metre setback of the garage wall albeit a nil setback had previously been approved by the Town.
33 The applicants also noted that the front southern neighbour (151A Coogee Street) had erected a shade cloth over their outdoor living area which would result in shading of this area from northern sun irrespective of the development of Unit 1. The verandah to 151A Coogee Street also extends 1.8 metres on its northern elevation thus already precluding northern sunlight from entering their own living areas, irrespective of the development or setback of Unit 1.
34 No evidence was provided to the Tribunal by either party as to the specific impact the proposed southern setback would have on privacy. However, in the "without prejudice" conditions required by the Tribunal and accepted by the applicants, the Town proposed to impose a requirement for the applicants to submit plans showing screening of the upper floor southern balcony of Unit 1 with non-openable permanent obscure material. This was to ensure that overlooking and loss of privacy does not occur to the southern neighbours.
Findings and conclusion
35 For the reasons summarised below, the Tribunal on balance, determines that the application for review be approved:
(i) No evidence was provided to the Tribunal by the Town to substantiate why the development did not comply with the performance criteria of the Codes. The Tribunal agreed with the technical assessment by the Town's officers that overshadowing met Code requirements, privacy could be addressed by conditions, and that any impact from the overall development on neighbours was minor.
(ii) The Tribunal had previously determined that the development generally met the Town's policy objectives for infill development and was consistent with the intended form of development for the locality
(Page 10)
- (iii) The application before the Tribunal was substantively the same development as previously approved by the Town (as modified by the Tribunal) with the only material change being a 400 millimetre reduction in part of the upper floor setback of Unit 1.
(iv) The only issue of concern to the Town was stated to the Tribunal as being the southern side setback for the upper floor and, in particular, the impact this would have on overshadowing. However, it was evident to the Tribunal that increasing this setback to a minimum of 1.9 metres to comply with the acceptable development criteria of the Codes would not materially improve the overshadowing impact on the adjoining neighbours and that this impact would not be significant relative to the existing situation.
(v) The applicants had addressed some of the concerns raised by the rear southern neighbour by increasing the setback of the garage to 1 metre, albeit a nil setback for this wall had previously been approved by the Town.
Orders
36 The Tribunal makes the following orders:
1. The application for review is upheld.
2. The decision of the Town of Vincent is set aside.
3. The development, as set out on the plans accompanying the development application and date stamped by the Town of Vincent as received on 16 May 2006, is approved subject to the following conditions:
(a) Prior to the issue of a building licence, plans shall be submitted and approved demonstrating any new street/ front wall, fence and gate between the Coogee Street boundary and the main building, including along the side boundaries within this front setback area, complying with the following:
1. the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
- 2. decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2 metres above the adjacent footpath level;
3. the maximum width, depth and diameter of posts and piers being 350 millimetres;
4. 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
5. 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. 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.
- (b) A demolition licence shall be obtained from the Town of Vincent prior to commencement of any demolition works on site.
(c) An archival documented record of the place (including photographs, floor plans and elevations) for the Town of Vincent's historical archive collection shall be submitted and approved prior to the issue of a demolition licence.
(d) A detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Coogee Street verge adjacent to the subject property, 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).
(e) The applicant/owner(s) shall advise (prospective) purchasers of the proposed dwelling site that if this development does not proceed, any subsequent proposed development shall comply with the relevant
- development requirements of the Town of Vincent Town Planning Scheme No 1 and the associated policies and the Residential Design Codes of Western Australia 2002, and it is not to be assumed that the Town of Vincent will support variations to the requirements.
- (f) Prior to the issue of a building licence, where vehicular access to the property is via a right of way and the right of way is not a public road, the applicant/owner(s) shall demonstrate (by submission of copies of the certificate(s) of title or original plan or diagram of the survey or other documentation) that the owner(s) and occupier(s) of the property have a legal right to use the right of way, to the satisfaction of the Town of Vincent.
(g) Subject to first obtaining the consent of the owners of 157 Coogee Street for entry onto their land, the owners of the subject land shall finish and maintain the surface of the boundary (parapet) walls facing 157 Coogee Street in a good and clean condition.
(h) The alfresco area shall be 100% open on all sides and at all times except where it abuts the east elevation of the proposed houses.
(i) 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.
(j) Prior to the issue of a building licence, plans shall be submitted and approved demonstrating the southern side of the balcony on the upper floor of Unit 1 being screened with a permanent obscure material and be non-openable to a minimum of 1.6 metres above the finished ground/upper floor level. A permanent obscure material does not include a self-adhesive material or other material that is easily removed.
(k) Prior to the issue of a building licence, the subject land shall be amalgamated into one lot on the certificate of
- title; or alternatively, prior to the issue of a building licence the owner(s) shall enter into a legal agreement with and lodge an appropriate assurance bond/bank guarantee to the satisfaction of the Town, which is secured by a caveat on the certificate(s) of title of the subject land, prepared by the Town's solicitors or other solicitors agreed upon by the Town, undertaking to amalgamate the subject land into one lot within 6 months of the issue of the subject building licence. All costs associated with this condition shall be borne by the applicant/owner(s).
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J SMITHSON, SESSIONAL MEMBER
2