Nicotra and Town Of Vincent
[2008] WASAT 16
•30 JANUARY 2008
NICOTRA and TOWN OF VINCENT [2008] WASAT 16
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 16 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:209/2007 | 25 OCTOBER 2007 LAST SUBMISSIONS 31 OCTOBER 2007 | |
| Coram: | MR J JORDAN (MEMBER) | 29/01/08 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent to refuse the development application for the three storey multiple dwelling development at Lot 22 (No 6) corner London Street and Haynes Street, North Perth is affirmed. | ||
| B | |||
| PDF Version |
| Parties: | SAM NICOTRA TOWN OF VINCENT |
Catchwords: | Town planning Development application Refusal Multiple dwellings Three storeys Noncomplying application Height Submissions from neighbours Precinct policy Density bonus requirements Bulk and scale Prominent location Streetscape Precedent Parking Density bonus and variations Plot ratio |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.1.3, cl 3.7.1A1, Table 1 Shire of Mundaring Town Planning Scheme No 3, cl 8.15(1) Town of Vincent Town Planning Scheme No 1, cl 19, cl 20, cl 38, cl 38(5), cl 40 |
Case References: | Avalon West Pty Ltd and Town of Victoria Park [2006] WASAT 311 Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143 Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent to refuse the development application for the three storey multiple dwelling development at Lot 22 (No 6) corner London Street and Haynes Street, North Perth is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NICOTRA and TOWN OF VINCENT [2008] WASAT 16 MEMBER : MR J JORDAN (MEMBER) HEARD : 25 OCTOBER 2007
- LAST SUBMISSIONS 31 OCTOBER 2007
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Refusal - Multiple dwellings - Three storeys - Noncomplying application - Height - Submissions from neighbours - Precinct policy - Density bonus requirements - Bulk and scale - Prominent location - Streetscape - Precedent - Parking - Density bonus and variations - Plot ratio
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
(Page 2)
Residential Design Codes of Western Australia (2002), cl 3.1.3, cl 3.7.1A1, Table 1
Shire of Mundaring Town Planning Scheme No 3, cl 8.15(1)
Town of Vincent Town Planning Scheme No 1, cl 19, cl 20, cl 38, cl 38(5), cl 40
Result:
The application for review is dismissed
The decision of the respondent to refuse the development application for the three storey multiple dwelling development at Lot 22 (No 6) corner London Street and Haynes Street, North Perth is affirmed.
Category: B
Representation:
Counsel:
Applicant : Mr S Allerding (Acting as Agent)
Respondent : Mr S Bain (Acting as Agent)
Solicitors:
Applicant : Allerding & Associates (Town Planners)
Respondent : SJB Planning and Urban Design (Town Planners)
Case(s) referred to in decision(s):
Avalon West Pty Ltd and Town of Victoria Park [2006] WASAT 311
Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143
Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal by the Town of Vincent of an application for the proposed demolition of a former brick display centre and construction of a three storey building comprising 12 multiple dwellings at the corner of a five way intersection which included Loftus Street, London Street, Haynes Street and Scarborough Beach Road, North Perth. The development would have frontage to London Street and Haynes Street, but because of the angled intersections of the roads, would have been visibly prominent from Scarborough Beach Road when travelling east and Loftus Street when travelling north.
2 The Town of Vincent refused the application because it considered that there was insufficient justification for the variation sought from the development controls, particularly the addition of a third storey, a doubling of the dwelling density and increase in the plot ratio that together increased bulk and scale compared to nearby development.
3 The applicant contended that the site was significant and warranted the granting of a height and density bonus. It was said that the resultant development would not have an adverse impact on the neighbours and was appropriate given the existing character and the potential for new development in the locality.
4 The Tribunal concluded that the development proposed would be inconsistent with the density and plot ratio controls of the town planning scheme and with the respondent's policies on height, bulk and scale relative to neighbouring buildings. The Tribunal maintained the planning principle that a general provision was not sufficient to set aside particular requirements of the scheme. The Tribunal refused to grant the relaxation of standards required and dismissed the application for review.
Introduction
5 These proceedings involve an application brought by Mr Sam Nicotra (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of Vincent (Town or Council) made on 8 May 2007, to refuse development approval for 12 multiple dwellings at Lot 22 (No 6) corner London Street and Haynes Street, North Perth (site).
(Page 4)
Site and locality
6 The site has an area of 2023 square metres. It has a parallelogram configuration because of the obtuse angle at which east-west Haynes Street meets London Street, which runs generally south-east to north-west. The frontage to London Street is 42.47 metres and to Haynes Street, 50.29 metres.
7 There is on the site an empty brick building previously used as a brick products display centre with an associated yard and, behind, a metal shed.
8 Adjoining to the north is a lot fronting London Street with a single house. Adjoining to the east in Haynes Street extending to Auckland Street is a single storey building used for commercial activity. At the north-east corner of the site are the rear yards of two single dwellings that face Auckland Street. Vehicular access to the site is gained from Haynes Street.
9 London Street is reserved as an Other Regional Road (known as a "blue road") in the Metropolitan Region Scheme (MRS). It is part of an important regional road link of blue roads which runs from Wanneroo Road at Dog Swamp about 1.5 kilometres to the north, south across Scarborough Beach Road, where it becomes Loftus Street - from which there is access to the Mitchell Freeway in Leederville. The blue road continues south to become Thomas Street through Subiaco and West Perth and then Winthrop Avenue terminating at Stirling Highway about 7 kilometres to the south. No vehicle figures were provided but the site is on an identified regional traffic route.
10 The intersection at which the site is located is a five way intersection best understood by reference to Attachment 1. Loftus Street runs generally north-south, London Street south-south-east to north-north-west, Scarborough Beach Road runs from the north-west to the south-east and feeding into that intersection from the east is Haynes Street which has been closed to form a cul-de-sac at the western end to prevent traffic entering the main intersection. The site touches on Scarborough Beach Road at its south-west corner.
11 Opposite the site, on the north-west corner of London Street and Scarborough Beach Road are single storey grouped dwellings. On the south-west corner of Scarborough Beach Road and Loftus Street, is a former service station now used for fencing sales and on the south-east corner of Loftus Street and Scarborough Beach Road is a commercial building with various tenancies. Because of the five way construction of the intersection, there is a triangle
(Page 5)
- of land bound by Haynes Street, Scarborough Beach Road and Auckland Street which contains a mixture of single storey commercial premises at the western apex of the triangle opposite the site and houses. North and south from the intersection along the blue road the development is mostly residential. West along Scarborough Beach Road is a mixture of commercial premises, single houses and multiple dwellings, some of which are three storeys. The site is about midway between the Mount Hawthorn shopping strip along Scarborough Beach Road about 500 metres to the west and the smaller commercial centre around the five way intersection of Scarborough Beach Road/Angove Street, Farmer Street and Charles Street about 500 metres to the east.
12 Attachment 1 illustrates that, because of the various angles of the roads to each other at the intersection, the site is very prominent and in view from vehicles travelling north along Loftus Street and east on Scarborough Beach Road.
Planning framework
13 The site is zoned Urban under the MRS. The zoning under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme) is Residential with a dwelling density coding of R30/40. The zoning table shows multiple dwellings to be a "P", or permitted, use in the residential zone.
14 Clause 19 of TPS 1 provides that, unless provided in or consistent with TPS 1, the development of land for any residential purposes is to conform with the, now, Residential Design Codes of Western Australia (2002) (Codes).
15 Clause 20 of TPS 1 "Special Application of the Residential Planning Codes" states:
"(1) The permitted site density per hectare under the Residential Planning Codes for any land is to be determined by reference to the Residential Planning Codes density number, as illustrated on the Scheme map, for that land.
(2) Subject to compliance with the procedures set out in the [Codes] for notifying affected owners and occupiers, the Council may grant an increase in the permitted dwelling density by up to 50% if -
- (a) the proposed development effects the discontinuance of a non-conforming use; or
(b) the proposed development conserves or enhances an existing dwelling or existing dwellings worthy of retention; or
(c) the proposed development would remove all existing vehicular access to and from the site from a road shown on the functional road hierarchy map as a primary distributor or district distributor (A).
- (3) Where the Council allows an increase in the permitted dwelling density, the standards and provisions of the [Codes] which relate to that higher density are to apply.
(4) Notwithstanding the provisions of the [Codes], the following special applications of the [Codes] apply:-
...
(c) North Perth Precinct P8,
(i) Dual Coding: Within the area coded R30/40, development will only be permitted to R40 standards where the existing house is retained and where criteria specified in the precinct document is satisfied.
(ii) After [30 December 2007] development and subdivision of land coded R20 will be determined in accordance with the R30/40 code and shall be subject to all provisions relevant to that coding in the North Perth Precinct.
...
(5) The Council will consider variations to [Codes] where it considers that acceptable levels of residential amenity can be achieved.
(Page 7)
- (6) If a provision of the [Codes] is inconsistent with a provision of this Scheme listed in subclause (4) above, the latter is to prevail to the extent of that inconsistency."
16 Clause 40 of TPS 1 provides:
"40 Determination of Non-Complying Applications
(1) In this clause:-
(a) an application which does not comply with a standard or requirement of this Scheme (including a standard or requirement set out in a planning policy or in the Scheme Map), where the standard or requirement does not provide for any permitted variation, is called a "non-complying application"; and
(b) a non-complying application does not include an application involving a prohibited use.
(2) Subject to subclause (3), the Council may refuse or approve a non-complying application.
(3) The Council cannot grant planning approval for a non-complying application unless -
(a) if so, required by the Council under [cl] 38(2) and the application has been advertised; and
(b) the Council is satisfied by an absolute majority that -
(i) if approval were granted, the development would be consistent with -
(a) the orderly and proper planning of the locality;
(b) the conservation of the amenities of the locality; and
(c) the statement of intent set out in the relevant Scheme Map; and
(ii) the non-compliance would not have any undue adverse affect on -
- (a) the occupiers or users of the development;
(b) the property in, or the inhabitants of, the locality; or
(c) the likely future development of the locality."
17 Clause 38 of TPS 1 sets out the general provisions with respect to determining applications. At cl 38(5), it states that the Council is to have regard to:
"...
(b) any relevant planning policy;
...
(f) any submission accompanying or related to the application;
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality; and
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
18 The Town has adopted policies which are included in a building policy manual. The site is included within the North Perth Precinct - Policy No: 3.1.8 (North Perth Precinct). The policy statement for the North Perth Precinct includes:
"All residential development is to comply with the Policies relating to Residential Design Guidelines and Residential Development and [cl] 20 of [TPS 1]."
19 The site is also within the Town's Residential Design Guidelines:Eton - Locality Plan 7 Policy No: 3.3.7 (Eton Locality Guidelines). The Eton Locality Guidelines state:
"New contemporary developments are encouraged provided that the design responds to the established character."
(Page 9)
20 A further policy is Residential Design Guidelines:Design Elements Policy No 3.2.8 Building Scale (Building Scale policy). This policy includes a table which includes the following:
|
|
|
|
|
|
| |
| |
| |
| |
| |
(1) Gable walls above eaves height: - less than 9m : exempted - greater than 9m : on merits (2) In some localities pitched roofs may be mandatory/preferred (3) Applies to ridges greater then 6m long. Short ridges: on merits. In some localities, steeper pitches may be required and greater height permitted. |
(Page 10)
21 At the intersection, the lots opposite the site which front Scarborough Beach Road on the corner of London Street, Haynes Street and diagonally opposite on the corner of Loftus Street, are in the area of Residential Design Guidelines "Scarborough - Locality Plan 8 - Policy No 3.3.8" (Scarborough Locality Guidelines). These lots and the others of the Scarborough Locality Guidelines area which stretches to the east and west along Scarborough Beach Road, are of mixed residential and commercial use but are zoned residential and have a density coding of R60.
Proposed development
22 Proposed is the demolition of the former brick products display centre buildings and construction of a three storey building consisting of 12 multiple dwellings. In general terms, the development would be three storeys at the corner of London Street and Haynes Street, stepping down to two storeys adjacent to the eastern boundary in Haynes Street and down to a single storey at the northern boundary in London Street (see Attachment 2). At ground floor level, adjacent to the eastern boundary and extending to the northern boundary, would be undercroft parking with access from Haynes Street. At the ground floor level, the dwellings would have private courtyards at the front adjacent to the common ground set back from the street frontages. The upper floors would have balconies overlooking the two streets.
23 The plans before the Tribunal for approval were those attached to the minutes of the Ordinary Meeting of Council dated 8 May 2007, included in the respondent's bundle of documents and also found at Attachment AB2 of the witness statement of Mr Andrea Nicola Angelo Basini, building designer (exhibit 3). Further plans were prepared in August 2007 and in September 2007. These plans were provided to the Tribunal for the purpose of illustrating how points raised by the Town might be addressed if the Tribunal were to decide that conditions related to those points were to be imposed. The planning officers of the respondent recommended to the Council that the proposed development be granted conditional approval.
The refusal
24 At its meeting of 8 May 2007, the respondent determined as follows:
"Application to commence development in accordance with the application for town planning approval dated 10/2/2006 for Proposed Demolition of Existing Buildings and the Construction of a Three-Storey
(Page 11)
- Development Comprising of 12 Multiple Dwellings and the attached plans for demolition only (excluding proposed building outline), and boundary elevation plans stamp-dated 18 January 2007 and perspective elevations, ground floor, first floor and second floor plans, overshadowing diagram, landscaping plan and site survey plan stamp-dated 14/02/2006 was REFUSED in according to the provisions of [TPS 1] and the [MRS] for the following reason(s):
1. Insufficient justification for the variations sought and the application of [cl] 40 in terms of the proposed density bonus.
2. Consideration of objections received from the local residents.
3. Inappropriate bulk and scale compared to nearby development."
The issues
25 The principal issues that arise for determination in this review are as follows:
1) Whether the height limit is exceeded, and if it is exceeded, whether the proposed height is acceptable.
2) Whether the proposed dwelling density is acceptable as consistent with orderly and proper planning.
3) Whether the proposed plot ratio and the resultant bulk and scale would have an adverse impact on the amenity of the neighbours and the locality.
26 In the respondent's initial statements of issues, facts and contentions in September 2007, the additional issue of whether the site enjoyed non-conforming use rights was raised. This was not pursued as the parties agreed at the hearing that this was no longer the case, having regard to the lapse of time since the former non-conforming use, listed as show rooms/open air display, had ceased. Also raised as issues were setbacks and car parking. The respondent's opening statement included comment that the setback issues were minor and could be accommodated. Car parking concerns associated with visitor parking could be addressed by a variation to the design as set out in the
(Page 12)
- September 2007 version of the plans and this, if necessary, could be the subject of conditions of approval.
Height
27 Both parties assessed the height of the proposed development having regard to the standards for external walls (concealed roof) because of the design of the proposed building. Clause 3.7.1A1 of the Codes and the Building Scale policy set a maximum 7 metre external wall height (concealed roof) for two storey buildings and a maximum height of 10 metres for external walls (concealed roof) for three storey buildings.
28 The Building Scale policy requires height to be measured from natural ground level at the point of measurement. Where the proposed building was to reach three storeys it would have a height of 10 metres or less, except at one point which would be 10.3 metres high. There was no dispute that the 10.3 metre height was at one point because of an existing depression in the natural ground level at that point. It was common ground that the wall was at the centre of the proposed building and would have no impact on neighbours, particularly by overshadowing.
29 Mr Simon Bain, a planning consultant who both appeared for and gave evidence on behalf of the respondent, accepted that, if a three storey building were allowed, the 10.3 metre high section of wall would have no impact on or overshadow neighbours. He referred, however, to the Eton Locality Guidelines which, at cl 3(i) state:
"[a] general height limit of two storeys (including loft) can be considered provided the second storey (including loft) is generally set back a minimum of 6 metres from the street and the amenity of the area is protected in terms of privacy, scale and set back".
30 It was Mr Bain's submission that only a building of two storeys would comply with the Eton Locality Guidelines. The building allowed should therefore be a maximum of 7 metres high to comply with the Building Scale policy. The proposed building exceeded the 7 metre limit for two storeys by up to 3.3 metres and so should not be approved.
31 Mr John Meggitt, a town planner called by the applicant to give evidence, argued that the word "generally" in the Eton Locality Guidelines provided flexibility in assessing development proposals and this should be exercised in this instance. This was because this prominent site was suited to a three storey development and the proposal would not
(Page 13)
- result in privacy, overshadowing, bulk or scale issues or otherwise adversely affect the amenity of the neighbours or locality.
32 The Tribunal agrees with Mr Bain that the height limit for a two storey building is exceeded by an unacceptable amount. If a three storey building were allowed, the Tribunal accepts that the height applied for, including the small over height section, would be acceptable. Height, however, is also a consideration in determining density and bulk and scale issues. It is necessary therefore, rather than forming a conclusion on height alone, to consider whether the density and plot ratio dispensations required for the proposed three storey development are acceptable.
Density and orderly and proper planning
33 The site is zoned residential with the density coding of R30/40 on the TPS 1 Scheme map. This equates, for the site, to a maximum of seven dwellings at R30 or eight at R40. It was common ground that the proposed density was the equivalent of R59.3, which, at 12 dwellings, equates to a bonus of about 50% for multiple dwellings at R40 and about 71% for grouped dwellings at R30 (the Codes do not include development standards for multiple dwellings at R30).
34 It was Mr Bain's submission that TPS 1 did not provide for such bonuses and therefore the proposed development was not capable of being approved. Clause 20(1) of TPS 1 specified that the permitted site density per hectare under the Codes was to be determined by reference to the Codes density number for the site on the Scheme map. Subclause 2 of cl 20 of TPS 1 provided for an increase on residential by up to 50% for certain circumstances, but the development did not satisfy any of the specified circumstances. Mr Bain further referred to cl 20(4)(3)(i) of TPS 1, which required development at R30/40, in support of his submission.
35 Mr Meggitt said that the relevant subclause of TPS 1 was cl 20(5) which states:
"The Council will consider variations to Residential Planning Codes where it considers that acceptable levels of residential amenity can be achieved."
36 Mr Meggitt's opinion was that an acceptable level of residential amenity would be achieved. Mr Meggitt also considered that, alternatively, the matter could be assessed under cl 40 of TPS 1 relating to non-complying developments. He believed that the tests required by cl 40(3) would be satisfied, in that the development would be
(Page 14)
- consistent with the orderly and proper planning of the locality, would conserve the amenities of the locality and would be consistent with the statement of intent set out in the relevant Scheme map. He submitted that the development would not have any undue adverse effect on the properties or the inhabitants of the locality or on the likely future development of the locality.
37 Mr Meggitt went on to further argue that the site adjoined land in the area of the Scarborough Locality Guidelines coded R60 where there are, three lots to the west of the site, three storey multiple dwellings. He pointed also to a recently built, three storey multiple dwelling development over the road to the west of the older development. Mr Meggitt referred to the Scheme map to show that a residential density of R60 was typical for properties adjacent to Scarborough Beach Road in the area of the Scarborough Locality Guidelines. In his opinion, the site was an anomaly in that it had been coded for the lower density of R30/40 rather than being included as part of the R60 residential areas on Scarborough Beach Road.
38 Mr Meggitt said that, given the prominence of the site at this major intersection and with adjoining commercial uses, it was desirable that the building make a strong architectural statement. He considered that from the aspect of urban design, the scale, bulk and design of the building would make a positive contribution to this entrance to the locality, which he considered to be adversely affected by the "tired and unattractive" appearance of the nearby commercial properties. Mr Meggitt referred to the intent of the Eton Locality Guidelines which was to encourage "new contemporary developments".
39 The respondent pointed out that the R60 coding along the Scarborough Beach Road frontage had adjacent to it in most locations R30 coding as a density transition to the R20 residential localities behind, mostly to the north of Scarborough Beach Road. In this instance, the applicant was seeking an R60 density adjacent to R20. This, it was said, would have a significant adverse impact on the amenity of the adjoining single residential locality.
40 The Tribunal considers that the proposal needs to be considered in the light of the planning controls applicable to the actual coding of the site, that is, R30/40. This is what is required by TPS 1. There is discretion available in TPS 1 to vary the requirements of the coding but, as described below, the Tribunal is of the view that the particular controls
(Page 15)
- of TPS 1 are not to be replaced by the general provisions of cl 20(5) or cl 40.
41 An exception to the particular controls of TPS 1 might be considered where the resultant development would be of a bulk and scale consistent with the existing character of a locality. That will be looked at next and unless it is established that neighbouring development is consistent with that proposed, the Tribunal believes that the proposed density would be inconsistent with the orderly and proper planning of the locality.
Plot ratio and bulk
42 Table 1 of the Codes does not include a plot ratio standard for the R30 density coding. At R40, the stipulated maximum plot ratio is 0.60 and at R60, it is 0.70. It was Mr Allerding's submission that the proposed plot ratio of 0.687, as determined by the designer Mr Basini and not disputed by any other evidence, was only marginally higher than that provided for under R40 and less than the maximum plot ratio allowed at R60, the density coding of the adjacent residential lots fronting Scarborough Beach Road.
43 Mr Bain pointed out that this additional plot ratio has resulted in the third floor, which would be beyond the two storey development expected under the respondent's policies. When the development was advertised, the respondent received one letter of support and six letters of objection. Mr Bain considered the objections valid and cl 38 of TPS 1 required that they be considered. Mr Samuel John Passante, an objecting neighbour, attended the Tribunal and provided a witness statement (exhibit 2). The neighbour adjoining to the north did not object.
44 The objectors raised issues concerning:
a) Increase in density and number of dwelling units not in keeping with the precinct and so not sympathetic or sensitive to the area;
b) Negative impact on the quality of life and residential amenity;
c) Development being overbearing in height, bulk and scale resulting in a sense of confinement due to size;
d) Impacts of noise of 12 air-conditioners and extra residents/cars;
(Page 16)
- e) Setting of a dangerous precedent;
f) Overlooking into additional residential properties, backyard, kitchen and living room due to height and scale of development; and
g) Additional traffic generated by development will increase traffic risks.
45 In Mr Meggitt's opinion, the 176 square metres of floor space additional to that which is allowed for the site under the plot ratio of an R40 development was acceptable. This was because the additional floor area was so located in the proposed building that there would be no overlooking or overshadowing of the neighbours and the proposed development would comply with the required standards for traffic generation and noise. It was his submission that the additional bulk would have no impact on the neighbours.
46 Mr Meggitt said that the site was located at a major traffic intersection, abutting a small commercial centre and that it was previously used for a non-conforming commercial use. Attached to his witness statement was an extract from a report commissioned by the respondent: "Economic Development Strategy 2005 - 2010" March 2005 by Procsys. In the report, this intersection was identified as a small commercial centre. Mr Meggitt said this was relevant to his view that the site related more closely to those adjacent commercial activities than to the low density residential area to the rear and the proposed development and would not have any adverse impact on the local amenity.
47 On the issue of precedent, Mr Meggitt expected that the application would be viewed on its merits, particularly the unique site characteristics and the nature of the development proposed. The nature of the area within which the site was located warranted, in his submission, exercising the flexibility available to vary standards in the Scheme. This prominent site was one in which it could be reasonably expected that there could be high residential density and the additional bulk would contribute to the proposed development being a "gateway building". Within this context, the scale and the bulk of the building would not have an impact on the adjoining residences or the streetscape and should be allowed.
48 As pointed out by Mr Bain, the extracts of the report by Procsys attached to Mr Meggitt's witness statement were incomplete and did not state whether the intersection was to remain commercial as part of any strategy or
(Page 17)
- whether it was proposed to rezone the lots from the current residential zoning to commercial.
49 The Tribunal has formed the view that the additional bulk of the proposed development resulting from the additional plot ratio would be inconsistent with the existing local character. The development potential of neighbouring lots, although R60, is also subject to the constraint of development "generally of two storeys", as set out in the Scarborough Locality Guidelines, and so it need not follow as a matter of course that the future character of the intersection would be dominated by three storey buildings.
50 The Tribunal notes that the development on each of the lots with a common boundary with the site is single storey. The development at each of the other corners of the intersection is also single storey. Mr Meggitt was of the opinion that the buildings at each of the other corners were potential redevelopment sites because of the age and standard of existing buildings and the R60 coding. There was not, however, any evidence of redevelopment proposals for the other lots at the intersection.
51 The only evidence of a recent approval of three storey multiple dwellings was that to the west, where an approval was granted on a site with a non-conforming use adjacent to a three storey building constructed about thirty years ago. In the circumstances of the proposed development, the approval being sought would be for the relaxation of plot ratio and a resultant bulk which would establish a pattern of development inconsistent with the current planning controls set for the locality.
52 The Tribunal has not been convinced that the location of the site is sufficient to warrant the relaxation of standards being applied for. A building of the plot ratio proposed would be of a bulk and scale beyond that which might be expected from the planning instruments, be greater than that of adjoining single residential development and be greater than both the existing and potential development of the other lots at the intersection. The Tribunal has formed the view that the increased plot ratio, and the bulk and scale that would result from the proposed development on this R30/40 coded site would be adverse to the amenity of the neighbours and the locality and cannot be supported.
Comment
53 The site is in the area of the respondent's North Perth Precinct. Clause 1 of the North Perth Precinct policy states for the residential area:
(Page 18)
- "All residential development is to comply with the Policies relating to Residential Design Guidelines and Residential Development and [cl] 20 of the Town of Vincent's [TPD 1]."
54 Mr Allerding, in his submissions, said there were two avenues in TPS 1 for dispensation from the controls of TPS 1 and the respondent's policies. These were cl 20(5) and cl 40. Mr Allerding argued that cl 20(5) was a subsection in its own right and provided the capacity to exercise discretion notwithstanding any other subsections of cl 20.
55 The Tribunal is concerned that the applicant is looking to set aside the particular requirements of cl 20(4)(c) of TPS 1 with the general discretion available on a literal interpretation of cl 20(5). In Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272 (Mainbush) at [26] - [27], the Tribunal stated:
"26. In Anthony Hordern and Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7, Gavan Duffy CJ and Dixon J held as follows:
'When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'
27. In this case, cl 3.1.3 of the Codes prescribes the mode, conditions and restrictions for varying the minimum and average site areas set out in Table 1. Consequently, if the minimum and average site areas were standards or requirements prescribed by the Scheme, cl 8.15(1) of the Scheme would be read in the context of cl 3.1.3 of the Codes, such that the general expression of cl 8.15(1) of the Scheme would be relevantly excluded."
56 In Mainbush, the Tribunal was concerned with site areas for grouped dwellings and the limited relaxation of area allowed by cl 3.1.3 of the Codes relative to the general discretion to relax standards found, in that case, at cl 8.15(1) of the Shire of MundaringTown Planning Scheme No 3. In the matter now before the Tribunal, there are a series of planning controls that need to be set aside to enable contemplation of the development proposed for the site. The first and most significant is cl 20(4)(c). This is the clause that refers to the split-coding of R30/40 of the site. The relevant
(Page 19)
- standards to be applied are those of R30, unless, as provided by cl 20(4)(c)(i), an existing house is retained and the precinct document is satisfied.
57 There is no existing house on the site. If, for the sake of analysis, this prerequisite to relaxation of standards were to be set to one side, then cl 20(4)(c) contemplates development at R40 standards. The proposed development is the equivalent density of R59.3. Table 1 of the Codes provides for R40 that development be at a plot ratio of 0.6 for multiple dwellings. The proposed development would have a plot ratio of 0.687, closer to the plot ratio standard of 0.70 for R60. It would also be necessary that the density be relaxed from R40 which would provide for eight dwellings on the site to permit a bonus of some 50% to allow for 12 dwellings.
58 The dispensations require therefore, not simply that the absence of an existing house be ignored, but also that multiple dwellings be developed at a density double that otherwise provided for in TPS 1 and at a plot ratio increased accordingly.
59 Clause 20(4)(c)(i) also requires that precinct documents be satisfied. The North Perth Precinct policy states at (1) under the heading "Residential Area" that:
"All residential development is to comply with the policy relating to Residential Design Guidelines and residential development ..."
60 Under development standards, it states:
"Development is to be in accordance with provisions of Town of Vincent [TPS 1], residential planning codes and with all of the relevant policies contained in the Town of Vincent Policy Manual.
In addition, the following standards apply:
(i) height:
Building with two storeys (including loft) strongly encouraged.
A third storey (including loft) can be considered, provided that the amenity of the adjacent residential area is protected in terms of privacy, scale and bulk."
(Page 20)
61 The North Perth Precinct is overlayed with residential design guidelines from the respondent's policy manual, including for the Eton locality in which the site is located and the Scarborough Locality Guidelines, in which are located the lots fronting Scarborough Beach Road to the east and west of the site. The Eton Locality Guidelines and the Scarborough Locality Guidelines both state at cl 3(i) in respect of height:
"A general height limit of two storeys (including loft) can be considered provided the second storey (including loft) is generally set back a minimum of 6 metres from the street and the amenity of the area is protected in terms of privacy, scale and bulk."
62 On density, at cl 3(iv), the Eton Locality Guidelines effectively repeat cl 20(4)(c)(i) in which the higher density of the split coding can be considered if an existing house is retained.
63 One further document in the interrelated policies from the Policy Manual is the already referred to Building Scale Policy, which states in an acceptable development table that for two storey buildings, the maximum height for external walls (concealed roof) is 7 metres. It would only be if a proposed development of three storeys were consistent with the existing and the desired height of buildings in the locality that the maximum height of 10 metres could be considered.
64 The respondent has submitted that the planning instruments can only be interpreted to provide for a two storey development. The applicant insists that the discretion available at cl 20(5) and in cl 40 provides for consideration of a three storey development and the three storey development proposed should be permitted on its merits, as it would have no adverse impact on the amenity of the neighbours or the locality.
65 The applicant cited examples of discretions considered on density coding for development sites. The first was Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143. The Tribunal notes in that matter, the respondent's town planning scheme did not include an equivalent of cl 20(4)(c) of TPS 1, and the site was coded R80, which provided for multiple dwellings and a plot ratio of 1.00. The second was Avalon West Pty Ltd and Town of Victoria Park [2006] WASAT 311. Again, the Tribunal considers that this matter can be distinguished as the density coding was R100, which provides for multiple dwellings and there had been prepared an urban design study which influenced the Tribunal's consideration of height, and the exercise of discretion consistent with the orderly and proper
(Page 21)
- planning of that locality.
66 The Tribunal has noted that the three storey section of the development recently approved by the Council and now nearing completion on Scarborough Beach Road on the western side of Dunedin Street, is adjacent to the existing three storey building, built in the 1970's, which Mr Bain has pointed out influences the immediate character. The new development steps down to two storeys where it abuts a two storey development further to the west. The Tribunal also notes that the older and more recent development is in the Scarborough Locality Guidelines area where the density coding is R60 with a maximum plot ratio of 0.7. Mr Bain's assertion that the new building also replaced an existing non conforming use was not disputed.
67 The site is prominent from both the south and the west, when approaching the intersection of London Street/Loftus Street/Scarborough Beach Road. The site currently has on it unused, unsightly buildings and an unkempt yard. The site is in a prominent location and it can be accepted that a building of "gateway" significance is appropriate for the site. The Tribunal has not been convinced, however, that it is necessary to set aside the planning instruments put in place by the Town to provide such a development. That is, it does not follow that it is necessary that a three storey building be built in conflict with the instruments to achieve the objective of having a gateway building.
68 Clause 38 of TPS 1 requires that, in addition to having regard to any relevant planning policy, regard be had to "the design, scale and relationship to existing buildings and surroundings of any proposed building or structure". This intersection might have significant potential for redevelopment because of the condition of existing buildings, the significant location and the density codings, but, at present, the development proposed would be out of scale with the R20 coded development to the north and north-east, out of scale with the existing buildings at the intersection, and inconsistent with the development controls in place which will influence consideration of development proposals for the neighbouring lots around the intersection.
Conclusion
69 The general principle is that a general provision in a town planning scheme is not sufficient to set aside particular requirements of the scheme. The respondent's TPS 1 and the suite of policy statements that are relevant to the subject land together provide a development control framework that requires development proposals to be consistent with a
(Page 22)
- residential density of R30 or R40 with the associated plot ratio requirement generally consistent with two storey development. The applicant is seeking to have approved a development which exceeds the identified height, density and plot ratio standards in circumstances where these have not otherwise been exceeded in the immediate locality.
70 On the issues considered in this matter the Tribunal has concluded that the proposed height would be unacceptable and the proposed density would be inconsistent with the orderly and proper planning of the immediate locality because these, together with the related increase in plot ratio, would result in a development which would not maintain the amenity of the locality. The Tribunal has therefore determined that the application be refused.
Orders
71 The Tribunal makes the following order:
1. The application for review is dismissed.
2. The decision of the respondent to refuse the development application for the three storey multiple dwelling development at Lot 22 (No 6) corner London Street and Haynes Street, North Perth is affirmed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
(Page 23)
Attachment 1
(Page 24)
Attachment 2
2
4
5