O'BRIEN and CITY OF VINCENT
[2017] WASAT 99
•17 JULY 2017
O'BRIEN and CITY OF VINCENT [2017] WASAT 99
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 99 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:251/2016 | 23 FEBRUARY 2017 | |
| Coram: | MS L EDDY (MEMBER) | 17/07/17 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Decision of respondent to refuse to grant development approval set aside and substituted with Tribunal's decision to grant development approval subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | GREG O'BRIEN ROSEANNE O'BRIEN CITY OF VINCENT |
Catchwords: | Town planning Development application Two storey single dwelling Local planning policy containing local housing objectives Ability to augment the Residential Design Codes Site located in character retention area Proposed development consistent with policy objectives for character retention areas |
Legislation: | Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 3, cl 3(5), cl 25, cl 26, cl 67, cl 67(b), Sch 1, Sch 2 Planning and Development Act 2005 (WA), s 87(4), s 252(1) State Administrative Tribunal Act 2005 (WA), s 31(3), s 87 State Planning Policy 3.1 - Residential Design Codes cl 7.1, cl 7.3, cl 7.3.1, cl 5.1.2, cl 5.1.3, cl 5.1.6 Town of Vincent Town Planning Scheme No 1, cl 6, cl 10, cl 19, cl 20(4)(e), cl 38, cl 40 |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433 Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 Springmist Pty Ltd v Shire of AugustaMargaret River (2005) 41 SR (WA) 207 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 |
Orders | 1. The application for the respondent to pay the applicants' costs is dismissed. |
Summary | The applicants applied to the City of Vincent for approval to construct a two storey residence on Harley Street, Highgate. After that application was refused by the City's council, the applicants commenced proceedings in the Tribunal. In the course of the proceedings, an amended proposal was considered by a consultant engaged to advise the City of Vincent. That consultant recommended some further changes to the front faҫade of the residence so as to render the second storey less prominent from the street and to make the house more visually compatible with the adjoining properties.,By the time the application came to be heard, the City of Vincent had adopted two new local policies relevant to determination of the application. Both of those policies included replacement deemedtocomply provisions that superseded various deemedtocomply provisions of the R Codes. They also included a number of 'design principles' and local housing objectives. The Tribunal determined that it is not possible to change the design principles in the R Codes by the implementation of a local planning policy. It is only where a matter is not covered by the R Codes that a local planning policy may augment the R Codes by provision local housing objectives that are to be taken into account in assessing a development proposal against the R Codes. It is also possible to provide local housing objectives in a local planning policy that are to be taken into account if it is determined that the development proposal does not meet one of the design principles in the R Codes.,On the evidence before it, the Tribunal determined that the proposed development, as modified by the changes proposed by the City of Vincent's consultant, met the requirements of relevant design principles in the R Codes. It was also determined that the proposed development was consistent with the City's local planning policies. The decision of the respondent was set aside and in substitution the application for approval of the amended proposed development was granted. An application by Mr and Mrs O'Brien for the City of Vincent to be ordered to pay their costs of the proceedings was refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : O'BRIEN and CITY OF VINCENT [2017] WASAT 99 MEMBER : MS L EDDY (MEMBER) HEARD : 23 FEBRUARY 2017 DELIVERED : 17 JULY 2017 FILE NO/S : DR 251 of 2016 BETWEEN : GREG O'BRIEN
- ROSEANNE O'BRIEN
Applicants
AND
CITY OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Two storey single dwelling - Local planning policy containing local housing objectives - Ability to augment the Residential Design Codes - Site located in character retention area - Proposed development consistent with policy objectives for character retention areas
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 3, cl 3(5), cl 25, cl 26, cl 67, cl 67(b), Sch 1, Sch 2
Planning and Development Act 2005 (WA), s 87(4), s 252(1)
State Administrative Tribunal Act 2005 (WA), s 31(3), s 87
State Planning Policy 3.1 - Residential Design Codes cl 7.1, cl 7.3, cl 7.3.1, cl 5.1.2, cl 5.1.3, cl 5.1.6
Town of Vincent Town Planning Scheme No 1, cl 6, cl 10, cl 19, cl 20(4)(e), cl 38, cl 40
Result:
Application granted
Decision of respondent to refuse to grant development approval set aside and substituted with Tribunal's decision to grant development approval subject to conditions
Summary of Tribunal's decision:
The applicants applied to the City of Vincent for approval to construct a two storey residence on Harley Street, Highgate. After that application was refused by the City's council, the applicants commenced proceedings in the Tribunal. In the course of the proceedings, an amended proposal was considered by a consultant engaged to advise the City of Vincent. That consultant recommended some further changes to the front faҫade of the residence so as to render the second storey less prominent from the street and to make the house more visually compatible with the adjoining properties.
By the time the application came to be heard, the City of Vincent had adopted two new local policies relevant to determination of the application. Both of those policies included replacement deemedtocomply provisions that superseded various deemedtocomply provisions of the R Codes. They also included a number of 'design principles' and local housing objectives. The Tribunal determined that it is not possible to change the design principles in the R Codes by the implementation of a local planning policy. It is only where a matter is not covered by the R Codes that a local planning policy may augment the R Codes by provision local housing objectives that are to be taken into account in assessing a development proposal against the R Codes. It is also possible to provide local housing objectives in a local planning policy that are to be taken into account if it is determined that the development proposal does not meet one of the design principles in the R Codes.
On the evidence before it, the Tribunal determined that the proposed development, as modified by the changes proposed by the City of Vincent's consultant, met the requirements of relevant design principles in the R Codes. It was also determined that the proposed development was consistent with the City's local planning policies. The decision of the respondent was set aside and in substitution the application for approval of the amended proposed development was granted. An application by Mr and Mrs O'Brien for the City of Vincent to be ordered to pay their costs of the proceedings was refused.
Category: B
Representation:
Counsel:
Applicants : Mr J Algieri (as agent)
Respondent : Mr T Dawkins (as agent)
Solicitors:
Applicants : Altus Planning & Appeals
Respondent : Urbis Pty Ltd
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433
Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Springmist Pty Ltd v Shire of AugustaMargaret River (2005) 41 SR (WA) 207
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Introduction
1 On 20 April 2016, Greg and Roseanne O'Brien (applicants), requested development approval to construct a two storey single dwelling at No 14 (Lot 51) Harley Street, Highgate (site).
2 On 26 July 2016, although the town planning officer of the City of Vincent (respondent) recommended that the proposed development be approved, the application was refused by the respondent's council.
3 On 22 August 2016, the applicants lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision. In the course of the proceedings in the Tribunal, the proposed development was amended, and that amended proposal was reconsidered by the respondent by invitation of the Tribunal. The amended proposal was recommended for conditional approval by the consultant town planner engaged by the respondent to advise it in relation to the amended proposal. Of relevance, the proposed conditions recommended by the consultant included requirements to further revise the front façade of the proposed development by raising the wall height of the front part of the lower portion of the proposed dwelling so that the gutter line of the lower roof and the roof of the veranda are more closely aligned with those of the adjoining dwellings, and by increasing the pitch of the lower level roof and extending it higher, so as to further screen the upper storey from view.
4 That amended proposal was refused development approval by the respondent's council at its meeting on 13 December 2016 for the following reasons:
1. The street setback variations are unacceptable and non-compliant with Policy No. 7.2.1 Residential Design Elements Clauses SADC 5 and SPC 5;
2. The bulk and scale of the second storey has a negative impact on the streetscape;
3. The building setbacks and boundary walls are unacceptable and noncompliant with RCodes clause 5.1.3 and Policy No.7.2.1 Residential Design Elements Clauses P3.1 and P3.2;
4. The proposed dwelling design is not in keeping with or complimentary to the streetscape of Harley Street; and
5. Harley Street is proposed to become a Character Retention Area.
5 Pursuant to s 31(3) of the State Administrative Tribunal Act 2005 (WA) (SAT Act), this decision then became the subject of review by the Tribunal in these proceedings.
6 At the conclusion of the final hearing of the matter the Tribunal delivered its decision to grant the application and to substitute the respondent's decision with the Tribunal's decision to grant development approval to construct a two storey single dwelling at the site subject to conditions. The parties were advised that the Tribunal would publish its reasons for decision, and these are those reasons.
7 By application dated 7 March 2017, the applicants made a further application seeking their costs of the proceedings. The Tribunal made orders on 23 March 2017 requiring the filing of submissions in relation to the costs application and that the costs application would be determined entirely on the documents. The applicants' submissions were lodged on 19 April 2017. The respondent's submissions were lodged on 23 May 2017. The Tribunal's decision in relation to the costs application follows after the reasons in relation to the substantive application.
Site and locality
8 The site is 347m2 and has a 10.06m wide frontage to both Harley Street and a rear unnamed rightofway. It is currently vacant.
9 Mr Joe Algieri, a town planner called on behalf of the applicants, and Mr Tim Dawkins, a town planner called on behalf of the respondent, agreed that the relevant locality for this application is the length of Harley Street.
10 Harley Street runs between Chatsford and Lincoln Streets, parallel to William Street on one side and Cavendish Street on the other. Harley Street is identified as a character retention area under the respondent's Character Retention Area Policy.
11 Mr Algieri and Mr Dawkins agreed that the built form in this locality is made up of residential dwellings. Mr Algieri described those dwellings as (Exhibit 7 paragraph 14):
… residential dwellings that range in style and built form from early 20th century character homes to some more recent modern contemporary designs. … there are two storey terrace apartments at 15A and 15B Harley Street (immediately across the street from the subject site) as well as 1A, 1B and 1C Harley Street, a late 20th century two storey dwelling at No. 30 Harley Street and a new, two storey dwelling currently being built at No. 2 Harley Street[.]
12 Although Mr Algieri did not agree that the locality is a 'highly' intact example of late nineteenth to early twentieth century residential dwellings, he otherwise agreed with the description of the characteristics of Harley Street in the report prepared for the respondent's council when it was considering making Harley Street a Character Retention Area (Agenda for Ordinary Meeting of Council 18 October 2016 - item 2 in Exhibit 4):
• The area is a highly intact example of late nineteenth to early twentieth century residential development comprising good examples of modest, single story dwellings and two storey terrace houses constructed in the Federation style of architecture;
• The overall form, style, height and selection of materials of the dwellings contribute to the uniformity of the streetscape, providing a consistent and coherent character;
• A high level of retained original detail including street facing verandas, decorative gables, chimneys, windows and front fences;
• Lot widths are generally consistent, with some half-width lots accommodating terrace housing built at the time of the Chatsworth Estate, many of which are now listed on the City's MHI;
• Front setbacks are generally consistent, reinforcing the building edge, maintaining consistent pattern of development and allowing viewlines along the fronts of all dwellings;
• Front fences are low and or visually permeable with an absence of solid, obtrusive front fences; and
• The street has an absence of car bays and carports to property frontages due to access from a Right of Way and the abundance of on street parking.
13 Mr Dawkins described Harley Street as 'an old street'. He stated that '27 out of the 33 properties on the street are original and they're predominantly late 1890s and early 1900s' (T:11; 23.04.17). He went on to state that:
… Harley Street which is a 20metre wide street, has a 12metre wide carriageway and is and is not a unique street, but a very very has very strong character in the way the street comes together, particularly in terms of the form of housing and the the way the spatial arrangement of the trees and the car bays and the wide expanse of bitumen on the road.
(T:12; 23.02.17)
Planning framework
14 The site is zoned Urban under the Metropolitan Region Scheme and Residential R50 under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme).
15 The Scheme
16 The objectives of TPS 1 are relevantly identified in cl 6 as:
…
(2) The overall goal of this Scheme is to ensure that the Town of Vincent will be widely recognised as providing a high level of services and amenities in a friendly and accountable manner.
(3) The general objectives of this Scheme are -
(a) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;
(b) to protect and enhance the health, safety and general welfare of the Town’s inhabitants and the social, physical and cultural environment;
(c) to ensure that the use and development of land is managed …
(i) recognises the individual character and needs of localities within the Scheme zone area; and
(ii) can respond readily to change;
(d) to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities;
…
(g) to promote and safeguard the cultural heritage of the Town by
(i) identifying, conserving and enhancing those places which are of significance to Vincent’s cultural heritage;
(ii) encouraging development that is in harmony with the cultural heritage value of an area; and
(iii) promoting public awareness of cultural heritage generally[.]
18 Clause 19 of TPS 1 provides that State Planning Policy 3.1 - Residential Design Codes (R Codes) are to be read as part of the Scheme and that residential development is to conform with the R Codes. At cl 20(4)(e) of TPS 1, in relation to the P12 Hyde Park Precinct, it is stated that:
…
(ii) The Council will consider any variation to the Residential Planning Codes where it is necessary to maintain the prevailing historic character of the precinct, particularly with regard to the redevelopment of small lots.
19 Clause 38 of TPS 1, which specifies the factors to be considered in determining an application for planning approval, has been effectively replaced by cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations): Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] [47].
20 The parties agree that the relevant matters in cl 67 of Sch 2 of the LPS Regulations to which the Tribunal must have regard in determining this application are:
(a) the aims and provisions of this Scheme and any other localplanning scheme operating within the Scheme area;
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
…
(l) the effect of the proposal on the cultural heritage significance of the area in which the development is located;
(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
…
(ii) the character of the locality;
(iii) social impacts of the development;
…
(w) the history of the site where the development is to be located;
…
(y) any submissions received on the application[.]
21 Clause 40 of TPS 1 provides for determination of 'non-complying applications'. It states:
(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 noncomplying application.
(3) The Council cannot grant planning approval for a non-complying application unless
a) if so, required by the Council under Clause 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.
22 There are two relevant local planning policies: Policy No 7.5.15 Character Retention Area (Character Policy) and Policy No 7.1.1 Built Form (Built Form Policy).
23 The policy objectives of the Built Form Policy are stated on page 4, and relevantly include:
Context
1. Development which integrates land use, public space and the form of the built environment.
2. Ensure development is respectful of local and historic context.
3. Preserve and reinterpret establish built form and social character.
4. Facilitate redevelopment while maintaining and enhancing amenity.
Design
5. To facilitate good quality and well-designed development, including both buildings and landscaping.
6. Development which facilitates activity and vibrancy.
…
9. To facilitate orderly and proper planning by providing Deemed to Comply requirements as a straight-forward pathway to approval and Design Principles and Local Housing Objectives for innovative solutions resulting in positive development outcomes.
24 On page 7 of the Built Form Policy it is stated, in relation to the application of the policy:
2. Development Standards
2.1 Applications for development that comply with the relevant Deemed to Comply policy provisions are considered to be acceptable and will therefore be approved.
2.2 Applications for development that proposes any of the Not Accepted policy provisions specified will be refused.
2.3 Applications for development that seek departure from the Deemed to Comply policy provisions may be deemed to be acceptable where the following occurs:
2.3.1 The applicant applies for assessment against the relevant Design Principles, Local Housing Objectives, Policy Objectives and Objectives of the local planning scheme;
2.3.2 The applicant provides adequate justification against those Design Principles, Local Housing Objectives, Policy Objectives and Objectives of the local planning scheme;
2.3.3 Where required by the City's Policy 4.2.13 Design Advisory Committee (DAC), the applicant presents the development to the DAC to review and provide comment to the City regarding whether the application meets the relevant Design Principles contained within the Policy and Appendix 1 and Local Housing Objectives; and
2.3.4 The City will assess and determine at its discretion that the outcome will achieve the relevant Design Principles, Local Housing Objectives, Policy Objectives and Objectives of the local planning scheme.
26 On pages 79 to 84 of the Built Form Policy the policy provides what are described as 'design principles', 'design principles and local housing objectives' and 'deemedtocomply' provisions in relation to street setback, lot boundary setback and building heights in residential areas.
27 The Built Form Policy is apparently a policy made for two purposes. Firstly, in relation to development to which R Codes applies, the provisions of the Built Form Policy amend, replace or augment various aspects of the R Codes. A note to this effect directly follows each heading contained in Part 2 Policy Provisions of the Built Form Policy. For example, on page 12 of the Built Form Policy it is stated, following the heading 'Design Principles & Local Housing Objectives':
Pursuant to clause 7.3.1(b) of the R Codes, the following Local Housing Objectives augment the Design Principles in clauses 5.1.6 and 6.1.2 of the R Codes. For all development that is not subject to the R Codes the following apply as Design Principles.
28 It is further stated, following the heading 'Deemed to Comply' on the same page of the Built Form Policy:
Pursuant to clause 7.3.1(a) of the R Codes, the following provisions replace the Deemed to Comply requirements in clauses Sections [sic] 5.1.6 and 6.1.2 of the R Codes.
For all development that is not subject to the R Codes the following apply as Deemed to Comply provisions.
29 Secondly, as can also be seen from the above notes, the Built Form Policy provides guidance in relation to development that is not residential development. It is not stated what 'Design Principles' or 'DeemedtoComply' means in this context, although it might be inferred that these terms are intended to have a similar meaning, and be understood in a similar way, as they are used in the R Codes.
30 Clause 7.1 of the R Codes provides that:
The decisionmaker shall not amend or modify the RCodes, to provide for greater or lesser requirements unless it relates to matters expressly permitted under the RCodes to be amended or modified.
Subject to clause 7.3, a local planning policy, local development plan, or local structure plan that affects residential development shall be consistent with the provisions of the RCodes and may provide local objectives for housing design and development in so far as it guides the consideration of the decisionmaker to judge proposals.
The local planning policy, local development plan, or local structure plan to have effect, should be available with the scheme where the decisionmaker makes the scheme available.
31 Clause 7.3 of the R Codes provides:
7.3.1
Local planning policies, local development plans, local structure plans and activity centre plans may contain provisions that:
(a) amend or replace the following deemedtocomply provisions set out in Part 5 and/or Part 6 of the R-Codes:
…
(b) augment the RCodes by providing local housing objectives to guide judgements about the merits of proposals for any aspect of residential development that does not meet the requirements or is not provided for, under the R-Codes.
Amendments or replacements to deemed-tocomply provisions are to be consistent with the relevant design principle.
7.3.2
Notwithstanding clause 7.3.1, the local government may, with the approval of the WAPC, amend any other deemed-to-comply provision within the RCodes by means of a local planning policy, local structure plan or local development plan where it can be demonstrated to the satisfaction of the WAPC that the proposed amendment:
• is warranted due to a specific need related to that particular locality or region;
• is consistent with the objectives and design principles of the RCodes; and
• can be properly implemented and audited by the decisionmaker as part of the ongoing building approval process.
(underlining added)
32 On a plain reading of the text of those provisions, it is not open to a local government to change the design principles in the R Codes by the implementation of a local planning policy. The local government may amend or replace the deemedtocomply provisions identified in cl 7.3.1 of the R Codes or, with the permission of the Western Australian Planning Commission, any other deemed to comply provision of the R Codes through a local planning policy. The local government may also 'augment', or add to, the R Codes by providing local housing objectives in a local policy. However, it is only open to do this by way of a local policy in relation to a matter that is either not addressed by the R Codes or a situation where a development proposal does not meet the requirements of the R Codes.
33 A local government may alter or modify any part of the R Codes by incorporating a modified version of the R Codes into the local planning scheme. The model local planning scheme provisions contained in Sch 1 of the LPS Regulations expressly contemplate this occurring: cl 25 and cl 26 of Sch 1 of the LPS Regulations.
34 A local government may also adopt a local planning policy that provides for matters to be taken into account by the decisionmaker when determining a development application pursuant to cl 67 of Sch 2 of the LPS Regulations. Such matters would be matters that, if relevant to the particular application, the decisionmaker must have due regard to in addition to the consistency or otherwise of the proposed development with State policies such as the R Codes.
35 However, where the local planning scheme incorporates the R Codes into the scheme, to the extent that a local policy contains provisions (on matters covered by the R Codes) that are inconsistent with the R Codes (as permissibly amended or augmented pursuant to cl 7.3 of the R Codes or altered by the scheme itself), the decisionmaker is not required to have regard to those provisions. This is because cl 3 of Sch 2 of the LPS Regulations relevantly provides:
…
(3) A local planning policy must be based on sound town planning principles and may address either strategic or operational considerations in relation to the matters to which the policy applies.
…
(5) In making a determination under this Scheme the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with this Scheme.
36 The text of cl 3(5) of Sch 2 of the LPS Regulations does not specify what regard, if any, the decisionmaker is to have to any provisions of a relevant local planning policy that are inconsistent with the scheme. In my view, in the context of the LPS Regulations as a whole, and having regard to the status of the Scheme as subsidiary legislation (pursuant to s 87(4) of the PD Act), cl 3(5) of Sch 2 of the LPS Regulations, when read together with cl 67 of Sch 2 of the LPS Regulations, means that it is only to the extent that the provisions of a local planning policy is consistent with the local planning scheme that due regard must be had to the local planning policy in determining a development application.
37 As the proposed development is residential development, the relevant deemedtocomply provisions of the R Codes relating to street and boundary setback and building height have effectively been replaced by the deemedtocomply provisions on pages 79 to 84 of the Built Form Policy set out above. However, the position in relation to the purported 'Design Principles' in the Built Form Policy concerning street setback, lot boundary setback and building height for residential development, is different.
38 The Design Principles relating to street setback of a single house are contained in cl 5.1.2 of the R Codes, which states:
P2.1 Buildings set back from street boundaries an appropriate distance to ensure they:
• contribute to, and are consistent with, an established streetscape;
• provide adequate privacy and open space for dwellings;
• accommodate site planning requirements such as parking, landscape and utilities; and
• allow safety clearances for easements for essential service corridors.
P2.2 Buildings mass and form that:
• uses design features to affect the size and scale of the building;
• uses appropriate minor projections that do not detract from the character of the streetscape;
• minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like; and
• positively contributes to the prevailing development context and streetscape.
P5.2.1 Development which preserves and enhances the visual character of the existing streetscape by considering building setbacks.
40 Clearly, the street setbacks of buildings in a proposed residential development is a matter covered by the R Codes. Therefore, it would be permissible to augment the R Codes in relation to street setbacks only by providing Local Housing Objectives that provide guidance for the consideration of the merits of a proposal that did not meet the Design Guidelines in relation to street setbacks in the R Codes.
41 In my view, P5.2.1 of the Built Form Policy attempts to provide for a more stringent criteria in relation to the impact on streetscape, by requiring 'enhancement' of the visual character of the existing streetscape. The requirement in P2.1 of cl 5.1.2 of the R Codes is that the setback be sufficient to ensure the buildings 'contribute to, and are consistent with, an established streetscape'. If that is what 'design principle' P5.2.1 of the Built Form Policy is attempting to do, it cannot.
42 If the proposed development satisfies P2.1 in cl 5.1.2 of the R Codes there is no basis to turn to Built Form Policy in order to consider any 'local housing objectives'. Once it is determined that a development proposal meets the relevant design criteria in the R Codes, then consideration of the development, at least in relation to its compliance with the R Codes, is complete.
43 The 'Design Principles' P5.3.1 in relation to lot boundary setbacks and the 'Design Principles & Local Housing Objectives' P5.6.1 to P5.6.6 in relation to building height in the Built Form Policy are similarly matters that are covered by the R Codes. Thus, there will be no basis to turn to these provisions in considering the proposed development's compliance with the R Codes unless the proposed development does not satisfy the relevant design principles in the R Codes.
44 The Tribunal is satisfied that, properly understood, the respondent, and in its shoes the Tribunal, when determining an application for proposed residential development, can only have regard to 'design principle[s]' P5.2.1 and P5.3.1 and to 'Design Principles & Local Housing Objectives' P5.6.1 to P5.6.6 in the Built Form Policy in order to guide its consideration if it is determined that the proposed development does not satisfy the deemedtocomply requirements (now contained in the Built Form Policy) or the design principles in cl 5.1.2 of the R Codes.
45 The Character Policy states, on page 1, that one of its purposes is to 'provide guidance on development in identified Character Retention Areas'.
46 The objectives of the Character Policy are:
1. To identify areas within the City that contain characteristics valued by the community to be known as Character Retention Areas;
2. To establish a planning and design framework to protect the streetscapes located within Character Retention Areas;
3. To ensure that new buildings and additions to existing buildings will be sympathetic to the unique character of the streetscape; and
4. To distinguish between buildings within each Character Retention Area that contribute to the integrity of the streetscape and those which do not.
47 In relation to Harley Street, the Character Policy provides in Appendix 2:
1. PURPOSE
These guidelines have been adopted for the purpose of preserving and enhancing the established neighbourhood character and amenity of Harley Street, while allowing for new development that meets the changing needs of the community.
The guidelines:
1. Provide a comprehensive basis for the control of all development within Harley Street including new builds and additions/alterations to existing buildings;
2. Replace the deemed to comply requirements and/or provide additional deemed to comply requirements in relation to certain elements of the R codes.
2. HARLEY STREET CHACTER OBJECITVES
• Retention and conservation of the original federation style dwellings;
• Protection and enhancement of existing streetscape character;
• Retention of the visual dominance of late 19th to early 20th century residential development;
• Encourage a high standard of architectural and sustainable design solutions for additions to existing buildings and the development of new buildings;
• Additions to existing buildings and new dwellings are appropriately setback so as to maintain the visual prominence of the single story streetscape when viewed from Harley Street;
• New development is to respond appropriately to the surrounding street context through:
- consistent scale and bulk in relation to the original street pattern, maintaining front and side setback patterns;
- built form incorporates consistent physical built form elements without the requirement to mimic the style of the original character dwellings;
…
• Maintain an open atmosphere of street frontage by ensuring front boundary fences are low and/or visually permeable.
48 Following this, at Part 4 of the Character Policy, there is a table that has two columns: one headed 'Local Housing Objectives' and the other headed 'Deemed to Comply'. Relevantly to this matter, included in this table are provisions relating to street setbacks, lot boundaries, building height, roof pitch and building design. Therefore the deemed to comply provisions of the R Codes in relation to street setbacks, lot boundary setbacks and building height are replaced by the deemed to comply provisions specified in the table at items 1.1, 1.2 and 1.3 in Part 4 of the Character Policy.
49 As stated above, street setbacks, lot boundaries and building heights are matters that are dealt with at cl 5.1.2, cl 5.1.3 and cl 5.1.6 respectively of the R Codes.
50 Roof pitch and building design in relation to single houses are not matters expressly covered by the R Codes. However, cl 5.1.2 of the R Codes at P2.2 provides design principles in relation to building mass and form. As such, it is only to the extent the 'Local Housing Objectives' in the Character Policy cover matters not covered by P2.2 in cl 5.1.2 of the R Codes that the 'Housing Objectives' may be used to guide judgments about the merits of these aspects of the proposed development.
51 In my view the aspects of building design at O1.8 and C1.8.1 to C1.8.7 in the table in Part 4 of the Character Policy arguably cover matters not covered by the R Codes. The other aspects of building design and roof pitch therein come within, or restate, the provisions of the R Codes in relation to building access and form. Thus, the same approach is to be taken to items 1.7 and 1.8.1 in the table in Part 4 of the Character Policy as stated earlier in relation to setback, etcetera.
52 Item 1.8 of the table in Part 4 of the Character Policy provides:
|
| ||
|
| ||
|
|
|
|
|
|
|
|
|
Floor levels of the original dwellings in Harley Street are raised approximately 300-500mm above footpath level, which assists to define the verandah area and provide additional privacy as views into front rooms are obscured. | ||
|
| ||
|
| ||
|
| ||
|
| ||
State Planning Policy
53 The only relevant State Planning Policy in relation to these proceedings is the R Codes. There is no dispute that the proposed development does not satisfy all of the relevant deemedtocomply requirements in relation to street setback (including in relation to building mass and form), lot boundary setback and building height in the Built Form Policy and the Character Policy. The Design Principles in the R Codes that apply to these aspects are as follows:
5.1.2 Street setback
P2.1 Buildings set back from street boundaries an appropriate distance to ensure they:
• contribute to, and are consistent with, an established streetscape;
• provide adequate privacy and open space for dwellings;
• accommodate site planning requirements such as parking, landscape and utilities; and
• allow safety clearances for easements for essential service corridors.
P2.2 Buildings mass and form that:
• uses design features to affect the size and scale of the building;
• uses appropriate minor projections that do not detract from the character of the streetscape;
• minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like; and
• positively contributes to the prevailing development context and streetscape.
5.1.3 Lot boundary setback
P3.1 Buildings set back from lot boundaries so as to:
• reduce impacts of building bulk on adjoining properties;
• provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and
• minimise the extent of overlooking and resultant loss of privacy on adjoining properties.
P3.2 Buildings built up to boundaries (other than the street boundary) where this:
• makes more effective use of space for enhanced privacy for the occupant/s or outdoor living areas;
• does not compromise the design principle contained in clause 5.1.3 P3.1;
• does not have any adverse impact on the amenity of the adjoining property;
• ensures direct sun to major openings to habitable rooms and outdoor living areas for adjoining properties is not restricted; and
• positively contributes to the prevailing development context and streetscape.
…
5.1.6 Building height
P6 Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves; and where appropriate maintains:
• adequate access to direct sun into buildings and appurtenant open spaces;
• adequate daylight to major openings into habitable rooms; and
• access to views of significance.
54 The proposed development involves a use which is permissible in the Hyde Park Precinct. The significant issues to be determined, in light of the relevant provisions of the Scheme, the local planning policies and the R Codes, are:
1) whether or not the proposed development met the requirements of the R Codes; and
2) whether or not the proposed development is consistent with the relevant provisions and objectives of the Character Policy.
55 Having regard to these matters, to the objectives of TPS 1 and to any submissions received in relation to the proposed development, in this case, effectively encompasses the relevant matters to which due regard must be had pursuant to cl 67 of Sch 2 of the LPS Regulations.
Consistency with the R Codes
56 At the hearing, Mr Dawkins and Mr Algieri agreed that the proposed development complied with the Design Principles P3.1 and P3.2 in cl 5.1.3 of the R Codes in relation to lot boundary setbacks.
57 The planners focused on the issues of the street setback of the lower and upper storeys of the proposed development and the building height. It was agreed that the proposed development did not meet the deemedtocomply requirements in the Built Form Policy or the Character Policy in relation to these matters. The evidence was therefore focused on whether or not the proposed development met the relevant Design Principles for these matters in the R Codes. In particular, the planners focused on:
1) whether the proposed development is sufficiently set back from the street boundaries so as to contribute to, and be consistent with the established streetscape (the first dot point in P2.1 of cl 5.1.2 of the R Codes); and
2) whether the height of the proposed development (in terms of its second storey) positively contributes to the prevailing development context and streetscape (the last dot point in P3.1 in cl 5.1.3 of the R Codes).
58 Mr Dawkins' evidence in relation to street setback is, in essence, that there is high level of consistency in this particular streetscape in relation to the setback of the dwellings. In particular, the majority of the dwellings have a verandah in front of part of the dwelling which steps back, that is, is further set back than the rest of the building. This causes two distinct levels of setback and creates articulation in the building form. Mr Dawkins considers that the depth of the verandah of the proposed development was insufficient and therefore the building did not step back sufficiently so as to be consistent with the streetscape.
59 In response to questioning about the depth of verandahs in this locality Mr Dawkins stated that he did not know the measurements of other verandahs in the street, but he was aware the Character Policy provisions relating to the Hyde Park Precinct were conceived following an audit. In that process, it was identified that 1.8 metres was the average depth of verandahs in Harley Street. Mr Dawkins acknowledged that an average measurement very likely indicated that some verandahs on Harley Street may be deeper than the average and some may be less deep. It is his view, however, that the verandahs on the two properties adjoining the site were 'generous deep verandahs' (T:34; 23.02.17). Mr Dawkins stated that the lesser depth of the verandah of the proposed development would be noticeably inconsistent, particularly with the two neighbouring properties, because there would be less of a relief, or void, that would be apparent to the eye.
60 Mr Dawkins is also concerned that the verandah was not a useable space because it lacked sufficient depth. On questioning however, he was not able to provide any basis for this opinion.
61 Mr Algieri stated that in his view the street setbacks of the proposed development are consistent with the streetscape. In Mr Algieri's opinion the important aspect is that the proposed development has a verandah that steps back consistently with the style of the existing housing in the street. Mr Algieri stated that any difference in the depth of the verandah is not significant in terms of assessing the consistency of the proposed development with the existing streetscape.
62 The Tribunal prefers the evidence of Mr Algieri in relation to this issue. Mr Dawkins was not able to adequately explain why the difference in the depth of the verandah was of such significance that it rendered the proposed development inconsistent with the streetscape, in particular where he was not able to describe the depths of the existing verandahs in the streetscape. The Tribunal is not satisfied that the depth of the step back of the verandah has to be identical to the two neighbouring properties in order for the proposed development to be consistent with the streetscape in this case. Both of the town planners agreed that the step back of the verandah was consistent, in terms of style, with the properties on either side of the site and with the majority of the houses in the streetscape. The Tribunal is satisfied that the proposed development meets the design standard in the R Codes in relation to the lower storey setback.
63 In relation to the upper storey, Mr Dawkins was originally of the opinion that the upper storey setback was insufficient as the noticeable second storey was inconsistent with the existing streetscape. However, in oral evidence it was clarified that this opinion related to the amended proposed development considered by the respondent in December 2016. Mr Algieri agreed with Mr Dawkins in relation to that version of the proposed development. However, Mr Algieri was of the view that the proposed development as further amended by the suggested conditions of the respondent's consultant did not read as having a second storey from the street and was therefore consistent with the existing streetscape. Mr Algieri confirmed that the applicants were willing to accept the suggested changes to the amended proposed development made by the respondent's consultant.
64 In relation to this version of the proposed development, Mr Dawkins stated (T:47-48; 23.02.17):
… I prefer the plans with the raised roof. It brings the eaves up to a matching height. It reduces the squat view view of the house. It brings it closer to the deemed-tocomply provision of 40 courses rather than 37 courses. So it does a lot of good things and it probably does, without windows to the upper level, remove the remove that the appearance of that second storey[.]
65 While Mr Dawkins did not expressly state that he accepted that the further amended proposed development complied with the design principle in relation to the setback of the upper storey, I am satisfied that his evidence was to that effect. Mr Dawkins purported to rely on the 'housing objective' in the Character Policy to maintain his opinion that the upper storey setback was insufficient. However, there was no basis to go to the housing objective as, on the evidence of both town planners, the further amended proposed development meets the relevant design principle in the R Codes in relation to setback of the upper level.
66 There was no evidence before the Tribunal to the effect that the further amended proposed development would adversely impact on neighbouring properties because of building height. Mr Algieri's evidence was to the effect that it would not. The Tribunal is satisfied that the further amended proposed development complies with the design principle in the R Codes in relation to building height.
67 The town planners discussed the issue of surveillance in the hearing as a consequence of Mr Dawkins' comments about what he considered was a lack of useability of the verandah of the proposed development. Ultimately, however, the town planners agreed that the proposed development was consistent with the design principle in the R Codes in relation to surveillance.
68 The Tribunal is satisfied that the further amended proposed development is consistent with the R Codes.
Consistency with local planning policies
69 The evidence of both of the town planners was to the effect that the roof of the further amended proposed development is designed so that it complements the existing streetscape character (see: Mr Algieri at T:4345; 23.02.17, Mr Dawkins T:47-48; 23.02.17). The roof pitch in the amended proposed development is 34 degrees. The 'deemedtocomply' requirement for roof pitch in the Character policy is '… between 30 and 40 degrees, with 35 to 45 degree pitches to gables where it can be viewed form the street'.
70 In the report prepared for the respondent in relation to the amended proposed development, the consultant town planner identified that, with the changes he suggested, at Exhibit 4, page 39:
… The proposed gable pitch is considered to align with the design of adjoining dwellings and subject to the changes required through [the proposed conditions], it is considered that the dwelling will be inkeeping with the scale and proportions of the original street pattern and meet the [objective contained in the Character Policy].
71 In relation to the 'local housing objective' concerning building design in the Character Policy, the consultant stated at Exhibit 4, page 39:
… The intent of [the proposed condition] is to raise the wall height of the front part of the lower portion of the proposed dwelling so that the gutter line of the lower roof and the roof of the verandah are more closely aligned with those of the adjoining dwellings. Additionally by raising the level of the lower storey roof but not adjusting the level of the upper storey, the screening of the upper storey will be improved.
It is acknowledged that the internal floor level is lower than the floor level of the adjoining dwellings however if the internal floor level of the proposed dwelling was to be raised, then the entire building including the upper storey would also increase in height. The lower floor level will not significantly impact upon the streetscape given the proposed front fence will create a visual barrier.
The windows proposed for bedroom 1 do not have a clear vertical emphasis and are not in keeping with the general proportions of windows in the locality. [A proposed condition] requires that the ratio of glazing to wall be reduced and the large single window is replaced with two vertical windows. This is considered to more appropriately respect the existing streetscape and is necessary for the development to meet [the housing objectives of the Character Policy in relation to building design].
72 Mr Algieri stated that he agreed with the opinions expressed by the consultant.
73 As indicated above, Mr Algieri and Mr Dawkins agreed that the articulation in the proposed building created by the step back where the verandah is located is consistent in style (if not in depth) with the streetscape. The front window style and plate height changes made in the further amended proposed development render the design of the further amended proposed development consistent and in sympathy with the neighbouring properties and the other older style properties in the street. Both town planners agreed that the further amended proposed development was of a high standard of architectural design.
74 The Tribunal is satisfied that the further amended proposed development is consistent with the 'Local Housing Objectives' in the Character Policy in relation to roof pitch and building design.
75 Importantly, the Tribunal is also satisfied, based on all of the evidence summarised above, that the further amended proposed development is consistent with the Harley Street character objectives in the Character Policy.
Conclusion
76 The Tribunal is satisfied that the further amended proposed development is consistent with TPS 1, meets the requirements of the R Codes, is consistent with relevant 'housing objectives' contained in the Character Policy and is consistent with the Harley Street character objectives in the Character Policy.
77 Although some submissions were received by the respondent objecting to the amended proposed development, the consultant engaged by the respondent to assist it in reconsidering the amended proposed development considered that the proposed conditions that he had suggested should be imposed would address the issues raised.
78 The correct and preferable decision in the circumstances is that the decision of the respondent should be set aside and substituted with a decision to approve the amended proposed development, as further amended by the changes proposed by the consultant town planner engaged to advise the respondent in relation to the reconsideration of the proposed development in December 2016.
Costs application
79 The applicants seek an order that the respondent pay their costs of the proceedings, which they state amounts to $17,325. The application is made on the basis that it is submitted that the respondent failed to make a genuine decision on the merits of the development application and therefore costs should be awarded pursuant to s 87(4) of the SAT Act.
80 The applicants submit that their original development application should not have been refused by the respondent on the basis that:
1) the respondent had previously approved a development on land on Harley Street four lots south of the site which had much greater variation from the relevant local planning policies than the proposed development;
2) the proposed development was not inconsistent with other developments in the surrounding streets; and
3) the respondent relied on a proposal for Harley Street to become a Character Retention Area when that proposal had not progressed to any sufficient degree at that stage.
81 The applicants also submit that the refusal to approve their amended development application was unreasonable. The applicants state that the refusal was unreasonable because there was minimal variation from relevant policy, there was insufficient explanation of the reasons for refusal and there was over reliance on the Character Policy at a time when that policy had not yet been adopted.
82 Finally, the applicants submit that, following the refusal of their original development application, they made a substantive and diligent effort to address all of the concerns. They submit that having done so, the amended development application was only minimally varied from the applicable policies. As such, the applicants submit it was unreasonable for the council to have refused to approve the amended proposed development and therefore costs should be awarded.
83 The respondent summarised the legal principles in relation to costs applications in the Tribunal as follows:
1) The presumptive starting position under s 87(1) of the SAT Act is that each party bears its own costs: Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale), at [9] and at [50].
2) However, the Tribunal may make an order for one party to pay up another party's costs: s 87(2) of the SAT Act.
3) Broadly speaking, the legislative intention of s 87(2) of the SAT Act is that the discretion to make a costs order is to be exercised if it is fair and reasonable in all of the circumstances of the case to do so: Questdale at [49] and at [51].
4) The onus is on the party seeking a costs order in its favour: Questdale at [51].
5) The legal rationale for an order for costs is not to punish the party against whom it is made, but to compensate or reimburse the party in whose favour it is made: Questdale at [51].
6) The power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate the other party for the expenses resulting from the proceeding.
7) The expenses that may be recovered pursuant to a costs order are not limited to the traditional notion of legal costs, that can include expenses and loss in connection with the conduct of the proceedings (for example, the cost of a nonlawyer advocate, travel expenses to attend the hearing, an amount to compensate a party for the inconvenience or expense of its participation in a proceeding): Springmist Pty Ltd v Shire of AugustaMargaret River (2005) 41 SR (WA) 207 (Springmist) at [64].
8) Section 87(3) of the SAT Act does not permit a costs order to be made to provide compensation in the nature of damages or consequential loss: Springmist at [64].
9) Section 87(4) of the SAT Act identifies particular matters to which the Tribunal is to have regard in exercising the discretion towards costs in review proceedings. These relevantly include whether the original decision maker genuinely attempted to make a decision on its merits.
10) Section 87(4) of the SAT Act does not limit the range of relevant considerations as to costs: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 at [32].
11) The fact that the Tribunal reaches a different conclusion to the original decisionmaker does not, of itself, lead to a conclusion that a respondent failed to genuinely attempt to make a decision on its merits: Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 (Myburgh) at [50].
12) This is so even if the respondent failed to properly or correctly apply the relevant criteria governing the exercise of its discretion: Myburgh at [50].
84 The Tribunal accepts that this is a correct summary of the relevant legal principles.
85 The respondent submits that the applicant does not identify any basis on which it could be said that the respondent did not genuinely attempt to make a decision on the merits of the amended proposed development in December 2016.
86 The respondent submits that it is not to the point to identify, where a development proposal does not comply with relevant deemedtocomply provisions of the R Codes, the degree of variation from those requirements. Thus it is not to the point that the applicants' amended development proposal had, in the applicants' submission, only minor variation from the relevant deemedtocomply requirements. The council was required to consider whether the amended proposed development met the relevant design principles of the R Codes. It is submitted that the consultant's report identified these provisions and identified that the respondent's discretion would need to be exercised in relation to them. There is no evidence to suggest that the respondent did not do this.
87 The respondent also submits that the applicants are incorrect to suggest that the respondent should not have had regard to the then draft Character Policy when considering the amended proposed development. In fact, the respondent was required to have regard to this draft local planning policy pursuant to cl 67(b) of Sch 2 of the LPS Regulations.
88 The Tribunal is not persuaded that the respondent did not genuinely consider the merits of the applicants' original proposed development or its amended proposed development. The respondent's council had before it, at each decision stage, a report from a qualified town planner that identified the relevant town planning framework and applied it to the proposed development. Although each of the town planners recommended conditional approval of the proposed development, in light of the terms of the draft Character Policy, which the respondent was required to have regard to in December 2016, there was a real question as to whether the amended proposed development should be approved. Although the respondent's consultant town planner recommended conditional approval of the amended proposed development, the suggested changes did not address all of the issues of potential noncompliance with the draft Character Policy.
89 There is no evidence to suggest that the respondent was, at that time, aware that the Character Policy could not have the effect of altering the Design Principles in the R Codes in the way it was plainly intended to have. In those circumstances, and where the respondent was plainly in the process of attempting to 'beef up' the ability to protect and maintain areas with character value, the Tribunal is not satisfied that there is sufficient basis to find that the respondent acted unreasonably in making the decisions that it did.
90 The Tribunal did not have any evidence before it on which it would be open to conclude that either the original proposed development or the amended proposed development was consistent with the streetscape of Harley Street. At least on the evidence available to it, it is unlikely that the Tribunal would have approved either of those versions of the proposed development.
91 In all of the circumstances, the Tribunal is not satisfied that it is fair and reasonable to make a costs order in this matter.
Order
1. The application for the respondent to pay the applicants' costs is dismissed.
I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER
6
6