Nesic*Simic & Anor and City Of Fremantle
[2008] WASAT 89
•30 APRIL 2008
NESICSIMIC & ANOR and CITY OF FREMANTLE [2008] WASAT 89
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 89 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:371/2007 | 8 FEBRUARY 2008 | |
| Coram: | MS R MOORE (SENIOR SESSIONAL MEMBER) | 30/04/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is dismissed Development approval is refused | ||
| B | |||
| PDF Version |
| Parties: | GORDANA NESICSIMIC DRAGAN SIMIC CITY OF FREMANTLE |
Catchwords: | Town planning Development application Two storey single house Setback of upper floor |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 4.2.1(a), cl 4.3.4, cl 5.3.3.1, Sch 12.4.2 City of Fremantle Town Planning Scheme No 3 Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002) |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent made on 3 October 2007 to refuse development approval for a two storey single dwelling at No 10 (Lot 410) Douglas Street, Fremantle, is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NESICSIMIC & ANOR and CITY OF FREMANTLE [2008] WASAT 89 MEMBER : MS R MOORE (SENIOR SESSIONAL MEMBER) HEARD : 8 FEBRUARY 2008 DELIVERED : 30 APRIL 2008 FILE NO/S : DR 371 of 2007 BETWEEN : GORDANA NESICSIMIC
- DRAGAN SIMIC
Applicants
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Two storey single house - Setback of upper floor
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 4.2.1(a), cl 4.3.4, cl 5.3.3.1, Sch 12.4.2
City of Fremantle Town Planning Scheme No 3
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002)
(Page 2)
Result:
Application for review is dismissed
Development approval is refused
Category: B
Representation:
Counsel:
Applicants : Selfrepresented
Respondent : Ms R Zuks (Acting as Agent)
Solicitors:
Applicants : Self-represented
Respondent : City of Fremantle
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal of a development application for a two storey dwelling at No 10 (Lot 410) Douglas Street, Fremantle.
2 The City of Fremantle refused the development application on the basis that it did not comply with the City of Fremantle's relevant planning policies in respect to height, mass and scale. The main concern was that the proposed setback of the upper floor would be detrimental to the existing historic character and streetscape of Douglas Street.
3 The Tribunal found that while the reduced setback of the ground floor was appropriate given the existing historic character of Douglas Street, the proposed setback of the upper floor would result in a building with a greater height, scale and mass than its neighbours.
4 The Tribunal determined that the proposed development would have an adverse impact on the streetscape and therefore did not comply with the City of Fremantle's streetscape guidelines and local area planning policy.
5 The respondent's application for review was dismissed and development approval refused.
Introduction
6 These proceedings involve an application brought by Mrs Gordana Nesic-Simic and Mr Dragan Simic (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the City of Fremantle (respondent, City or Council) made on 3 October 2007 to refuse development approval for a two storey dwelling at No 10 (Lot 410) Douglas Street, Fremantle (subject site or site).
Site and locality
7 The subject site is No 10 (Lot 410) Douglas Street, Fremantle.
8 Douglas Street is a narrow urban street containing mainly single storey residences. The street is approximately 6 metres wide, there are minimal verges and many of the houses have front setbacks of 1 metre to 2 metres.
(Page 4)
9 Ten of the eleven dwellings that front Douglas Street are included on the City of Fremantle's Municipal Heritage Inventory (MHI) and Heritage List. The existing single storey dwelling at the subject site is also listed but has been recommended for removal from the MHI.
Planning framework
10 The site is zoned Residential and has a residential density coding of R30 under the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme).
11 Clause 4.2.1(a) of LPS 4 states that development within residential zones shall:
"...
(ii) safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area,
(iii) encourage high standards of innovative housing design which recognise the need for privacy, energy efficient design and bulk and scale compatible with adjoining sites,
(iv) recognise the importance of traditional streetscape elements to existing and new development.
..."
12 Clause 5.3.3.1 of LPS 4 gives Council the discretion to vary the setback provisions of the Residential Design Codes of Western Australia (2002) (Codes) in a Local Area Policy Area, "in order to maintain amenity, traditional built forms or streetscapes".
13 The subject site is located in Local Planning Area 4 - South Fremantle (LPA 4) Sub-area 4.3.4. Schedule 12 of LPS 4 states that residential development in LPA 4 shall be in accordance with the Codes and with a two storey limit.
14 Schedule 12.4.2 of LPS 4 sets out matters to be considered when applying general and specific height requirements in LPA 4 as follows:
"In granting consent to the maximum heights prescribed Council shall be satisfied in regard to the following:
(Page 5)
- • that the proposal is consistent with predominant height patterns of adjoining properties and the locality generally,
• the proposal would not be detrimental to the amenity of the area,
• the proposal would be consistent, if applicable, with conservation objectives for the site and locality generally, and
• any other relevant matter outlined in Council's local planning policies.
Council may impose a lesser height in the event that the proposal does not satisfy any one or all of the above requirements."
15 Relevant to this matter are the Codes and the following policies adopted by Council:
• Policy DBH 1 - Urban Design and Streetscape Guidelines (DBH 1); and
• Policy DGF 8 - Douglas Street Local Area (DGF 8).
Proposed development
16 The proposed development is a two storey rendered brick dwelling with aluminium framed openings and a sheet metal roof. The ground floor consists of an entry foyer, theatre, bathroom, laundry, open plan kitchen dining family area and a double garage. The upper floor contains three bedrooms, a sitting area, bathroom and separate WC. The main bedroom has double doors opening on to a small balcony over the entry porch.
17 The proposed Douglas Street elevation shows glazed double doors to the entry accessed by a 2 metre by 2 metre porch with balcony above. Adjacent to the porch is a verandah which is 4 metres wide by 1.9 metres deep. This verandah is set back 1.5 metres from the front boundary.
18 The roof is hipped and pitched at 25 degrees over the main house and with the same roof form over the single storey attached garage. The garage wall is aligned with the main house and has a front setback of 3.4 metres and a nil setback to Carnac Street.
(Page 6)
19 The upper floor area is approximately 56% of the ground floor area (including the garage). The two storey section which fronts Douglas Street measures 6.2 metres in width and is set back 3.4 metres from the front boundary. The two storey section widens to 7.9 metres and this wider section is set back 9.4 metres from the front boundary. The two storey section is set back 1 metre from its western side boundary at the ground and upper floor level.
Council decision
20 The development application was the subject of a council officer report and was considered at the Council's Planning Services Committee meeting held on the 3 October 2007. The Council decision followed the officer's recommendation and development approval was refused for the following reasons:
"1. The proposed development is not consistent with the City of Fremantle's Local Planning Policy D.B.H1 'Urban Design and Streetscape Guidelines', with respect to the scale of new infill development. D.B.H1 requires that in a predominantly single narrow inner urban street, new development should be single storey at the street frontage, with any two storey extension constructed to the rear. A variation to this policy provision would not be consistent with the objective of D.B.H1.
2. The proposed development is not consistent with the City of Fremantle's Local Planning Policy D.G.F8 'Douglas Street Local Area', in that the small front setback of the upper floor of the development would be detrimental to the existing historic character and streetscape of Douglas Street."
Previous development approval
21 In April 2006, the applicants applied for, and were granted, development approval for the demolition of the existing residence at No 10 (Lot 410) Douglas Street, Fremantle and its replacement with a two storey residence.
22 This previous approval was assessed and approved under the City of Fremantle Town Planning Scheme No 3 (TPS 3). The respondent has since adopted LPS 4 which was gazetted on 8 March 2007 and supersedes TPS 3.
(Page 7)
23 The applicants argue that this previous approval provides a precedent for two storey frontage development on the subject site. Mrs NesicSimic is of the view that the two proposals have essentially the same building forms.
24 Ms Renee Zuks, the respondent's planner and representative, notes that the previous approval is still current and can be built but it is her view that "the previously approved dwelling is significantly different in design to the current proposed dwelling".
25 The drawings provided of the previously approved proposal show a two storey dwelling with a substantially different plan and elevations that show the two storey section located in a different part of the site.
26 Notwithstanding this, the Tribunal does not plan to compare the schemes in detail and will assess the current application on its current merits within the current town planning framework.
Will the proposed development have an adverse effect on the existing historic character and streetscape of Douglas Street?
27 The main issue which arises for determination in the review of this current development application is whether the proposed development will have an adverse effect on the existing historic character and streetscape of Douglas Street.
28 The respondent is of the view that the proposed setback for the upper floor of the development will result in this development dominating the streetscape as it is not consistent with the traditional streetscape pattern as defined in DGF 8.
29 DGF 8 states that:
"New infill residential development should follow the established streetscape pattern which consists of a densely built, traditionally urban street with single storey residences of varying building materials, low boundary walls, small front gardens, front verandahs and dwellings which relate to the street with front setbacks of only a few metres."
30 The applicants' position is that the proposed development satisfies DGF 8's requirements and "blends with the streetscape and achieves complementary scale" by incorporating traditional streetscape patterns in its composition. Mrs NesicSimic refers to elements such as setbacks, frontage widths, roof forms, traditional proportions, and verandahs as elements that have been included in the design of the proposed development.
(Page 8)
31 The Heritage Assessment dated January 2008 and prepared by Kelsall Binet Architects describes most of the houses in Douglas Street as "Classically" influenced Fremantle cottages:
"The front section of most of these houses consists of two parts: the first part being articulated, open, timber construction verandah running for the width of the building and abutting the second part, which comprises the main, higher and more substantial body of the building."
32 The Tribunal notes that elements such as the proposed 1.5 metre verandah setback, the 3.5 metre main building setback and the hipped roof forms are consistent with the existing streetscape pattern and the aims of DGF 8. But in terms of the actual building composition, the front projecting portico with balcony above; the positioning of the garage in the same line of the main building; the reduced width of the front verandah; and the non-traditional layout of the window and door openings to the front façade are all elements which combine to ensure that the proposed street elevation does not reflect the existing traditional streetscape patterns.
33 With regard to the upper floor, Mrs NesicSimic is of the view that DGF 8 does not preclude this or require it to be setback further than the ground floor. The respondent agrees that two storey development is not precluded but that it should not be detrimental to the existing historic character and streetscape and should comply with the design guidelines in DBH 1.
34 The applicant contends that as DGF 8 is specific to Douglas Street, it "logically takes precedence over the generic" DBH 1. Mr Kelsall, the heritage expert witness called by the respondent, considers that DBH 1 complements DGF 8. The Tribunal is of the view that all current planning policies should be given consideration and in this case agrees with Ms Zuks that there is in fact "no conflict between the provisions of each".
35 When discussing the scale of new infill development, DBH 1 states that "in a predominantly single storey narrow inner urban street, the new development should be single storey at the street frontage, with any two storey extension (if required) constructed to the rear". With regard to mass, "new houses should be designed to blend with, rather than dominate" existing houses and the streetscape.
(Page 9)
36 As already noted Douglas Street is narrow and predominantly single storey. There is a two storey building at the western end of Douglas Street which fronts on to South Terrace (No 218). There is also a two storey building midway along the southern side of Douglas Street (No 3).
37 Mrs NesicSimic argues that these two storey buildings and others in the area, indicate that "contrasts in building height are part of the local urban character" and that as the upper floor is not setback further than the ground floor, DBH 1 has not been consistently applied by the City.
38 Mr Kelsall is of the view that No 218 South Terrace does not form part of the Douglas Street streetscape as it is part of the South Terrace Precinct with specific and differing objectives. Ms Zuks is of the view that the large setback of No 3 Douglas Street (over 10 metres) reduces the impact on streetscape of the upper floor.
39 The Tribunal had the benefit of a view of the subject site and the immediate surroundings which include Douglas Street, Carnac Street and Carnac Lane. The view illustrated the narrow street and reduced setbacks of most of the houses fronting Douglas Street. The unusual intersection of Douglas Street and Carnac Street was also noted. This has been explained, by both the respondent and the applicant, as being the result of the demolition of an early building and the resumption of the corner lot in order to widen Carnac Street. This reconfiguration has resulted in the subject site becoming the corner lot.
40 The Tribunal is of the view that the reduced setback of the ground floor of the proposed development is appropriate given the established historic character and streetscape of Douglas Street, but is of the view that the proposed front and side setback of the upper floor will result in a building with a greater height, scale and mass than its neighbours.
41 The proposal does not comply with DGF 8 or DBH 1 and the overall appearance, height, scale and mass will be detrimental to, rather than enhance, the historic character and streetscape of Douglas Street.
Conclusion
42 The Tribunal has determined that the proposed development will have an adverse effect on the existing historic character and streetscape of Douglas Street.
(Page 10)
43 It follows that the application for review should be dismissed and the decision of the council to refuse development approval should be affirmed.
Orders
44 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 3 October 2007 to refuse development approval for a two storey single dwelling at No 10 (Lot 410) Douglas Street, Fremantle, is affirmed.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER
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