O'Donovan and Town Of Cambridge
[2008] WASAT 152
•30 JUNE 2008
O'DONOVAN and TOWN OF CAMBRIDGE [2008] WASAT 152
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 152 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:144/2008 | 30 MAY 2008 | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 30/06/08 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The decision of the respondent is set aside and substituted | ||
| B | |||
| PDF Version |
| Parties: | JAMES O'DONOVAN LINDA ANN O'DONOVAN KATE O'DONOVAN TOWN OF CAMBRIDGE |
Catchwords: | Town planning Height Roof pitch Flat roofs Skillion roof Locality Vicinity Precinct Streetscape Character of locality Respect the character of the locality Architectural character Federation Queen Anne Style Californian Bungalow style Residential development Undercroft garage Residential Design Guidelines Local planning policies Residential Design Codes (Variation 1) Acceptable development Performance criteria Views of significance View corridors |
Legislation: | Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia(2002) Residential Design Codes of Western Australia (2008), cl 5.2, cl 5.3.1(a), cl 5.3.1(b), cl 6.7 P1 Town of Cambridge Town Planning Scheme No 1, cl 4.2(a), cl 9.2, cl 18, cl 19(3) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 26 March 2008 to refuse development approval for two new group dwellings at No 4 (Lot 1) Clune Avenue, West Leederville is set aside and a decision is substituted that development approval is granted. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : O'DONOVAN and TOWN OF CAMBRIDGE [2008] WASAT 152 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 30 MAY 2008 DELIVERED : 30 JUNE 2008 FILE NO/S : DR 144 of 2008 BETWEEN : JAMES O'DONOVAN
- LINDA ANN O'DONOVAN
KATE O'DONOVAN
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Height - Roof pitch - Flat roofs - Skillion roof - Locality - Vicinity - Precinct - Streetscape - Character of locality - Respect the character of the locality - Architectural character - Federation Queen Anne Style - Californian Bungalow style - Residential development - Undercroft garage - Residential Design Guidelines - Local planning policies - Residential Design Codes (Variation 1) - Acceptable development - Performance criteria - Views of significance - View corridors
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Legislation:
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia(2002)
Residential Design Codes of Western Australia (2008), cl 5.2, cl 5.3.1(a), cl 5.3.1(b), cl 6.7 P1
Town of Cambridge Town Planning Scheme No 1, cl 4.2(a), cl 9.2, cl 18, cl 19(3)
Result:
The application for review is allowed
The decision of the respondent is set aside and substituted
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Ms A Butterworth (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 This matter involved an application for a review of a refusal to approve a development application for two new dwellings at No 4 (Lot 1) Clune Avenue, West Leederville.
2 The respondent's reasons for refusal were related to non-compliance with requirements for roof pitch and building height. The reasons for refusal formed the basis of the two issues to be determined by the State Administrative Tribunal. Both issues were related to the character of the locality and specifically the subprecinct requirements for a locality described as Central West Leederville.
3 The Tribunal found that Clune Avenue and the immediate locality of the proposed dwellings were not characteristic of the Central West Leederville subprecinct.
4 The Tribunal found that the building height and the proposed roof pitch (flat roofs) were acceptable in the context of the planning framework and the character of the immediate locality of the proposed development.
Introduction
5 These proceedings involve an application brought by Mr James O'Donovan (applicant), Ms Linda Ann O'Donovan and Ms Kate O'Donovan on 17 April 2008 for a review of the decision of the Town of Cambridge (respondent or Council) made on 26 March 2008 to refuse approval for an application to build two new dwellings at No 4 (Lot 1) Clune Avenue, West Leederville (subject land or site).
6 The application was refused because the Council determined that the application exceeded maximum height requirements and the proposed flat roofs were not acceptable.
7 The applicant lodged a proposal for two group dwellings which was to be considered by Council in July 2007. The administration report to Council, recommending refusal, was endorsed by the Development Committee in July 2007 and the applicant withdrew the application before consideration by the Council. Amended plans were submitted which received a recommendation for approval from the Council's administration. However, the Development Committee recommended refusal and the proposal was again withdrawn. The proposal was resubmitted and
(Page 4)
- refused by Council in November 2007 because of the roof pitch and excessive height.
8 The current proposal is largely unchanged from the proposal refused in November 2007. The most significant changes were a reduction in height by 0.7 metres and an increase in the front setback of approximately 1.2 metres. The revised plans were recommended for approval in the administration report to Council. However the Council refused the application at its meeting held on 25 March 2008.
Site and locality
9 The site is described as No 4 (Lot 1) Clune Avenue, West Leederville. It has an area of 918 square metres with a 30.48 metre frontage to Clune Avenue. The drawings indicate there is an approximate 2.5 metre fall from the rear (south) of the site to the front of the site.
10 Although the site is currently a single lot, it was approved as a threelot green title subdivision by the Western Australian Planning Commission in June 2007. The conditions of approval are currently being assessed by the Council prior to clearance. The proposed subdivision will create three lots of 306 square metres each and with individual frontages of just over 10 metres to Clune Avenue.
11 The site has side frontage to a right of way on the western side boundary. However, the proposed dwellings are located on the eastern and central portions of the lot. When the three new lots are created, both new dwellings will be fully contained within the eastern and central lots. The proposed western lot is vacant at this stage.
12 The eastern lot adjoins an existing two storey dwelling with a skillion roof. Viewed as a front elevation, this neighbouring lot presents as a two storey dwelling with a flat roof over an undercroft garage.
13 The characteristics of the street and the locality are significant in the determination of this application for review and will be fully considered later in these reasons. However, the broad descriptions are as follows.
14 Clune Avenue, runs parallel to Lake Monger Drive and the houses in Clune Avenue (all on the southern side) have unrestricted views of the park between Lake Monger Drive and Clune Avenue with some views of the lake. The restrictions on the views to the lake are caused by a row of Moreton Bay Fig trees.
(Page 5)
15 The site and most of Clune Avenue is located in the Central West Leederville sub-precinct which is described as a precinct with a largely intact character of houses preWWII. This will be discussed in greater detail later. Immediately to the west of Clune Avenue is the Hill of Tara subprecinct which in loose terms is described as containing larger modern homes. The eastern end of Clune Avenue, less than 100 metres from the subject land, finishes in a T junction with Northwood Street. There is a small commercial zone in this part of Northwood Street and a three storey commercial building forms part of the streetscape at the eastern end of Clune Avenue.
16 The Tribunal had the benefit of a view of the site and locality in the company of representatives of the parties.
Planning framework
17 The site is zoned residential in the respondent's Town of Cambridge Town Planning Scheme No 1 (TPS 1) and is coded Residential R30. The subject land at the time of the review remains a single lot and the application must be assessed as a group dwelling which is an AA use in TPS 1.
18 Clause 18 of TPS 1 requires that development is to be in accordance with "the standards and requirements contained in this Scheme Text, the Planning Policies and the Residential Planning Codes".
19 Clause 9.2 of TPS 1 gives the Council power to make planning policies. The most significant policy with direct relevance to this review is the Residential Design Guidelines (Design Guidelines). These will be discussed in greater detail later in these reasons.
20 Clause 4.2(a) of TPS 1 states that "… development of land is to conform with the Statement of Intent and the development requirements stipulated for the precinct in which the land is located". The precinct planning policies are contained within the respondent's Town Planning Scheme Policy Manual. The Statement of Intent and requirements of the West Leederville Precinct are discussed later in these reasons.
21 Clause 19(3) of TPS 1 recognises the jurisdiction of the Residential Design Codes of Western Australia (2008) (R Codes) (previously the Residential Design Codes of Western Australia (2002)) in determining requirements and standards for residential development.
(Page 6)
22 Significantly, the R Codes were recently amended. The revised R Codes are fully described as State Planning Policy 3.1 - Residential Design Codes (Variation 1) and were gazetted in April 2008. The revised Codes replace the earlier version which were gazetted in October 2002. All references to the R Codes in these reasons refer to current version (Variation 1) gazetted in April 2008. Relevant sections of the R Codes will be discussed later in these reasons.
Proposed development
23 The applicant's proposal is to build two separate group dwellings. Both dwellings are two storeys over an undercroft garage.
24 The proposed height of both dwellings exceeds the acceptable development height of 7.0 metres as specified in the Design Guidelines. Unit A has a wall height of 7.795 metres to the front reducing to 6.835 metres at the rear. Unit B has a wall height of 7.845 metres at the front reducing to 6.895 metres at the rear.
25 Both dwellings have flat roofs and both dwellings are set back 7.8 metres from the front boundary. The side setback to the existing neighbour on the east boundary is 1.93 metres. The setback to the proposed new lot on the west is also 1.93 metres. There is a 2.5 metre separation between the two proposed buildings.
Council's decision
26 The development application was refused at the respondent's meeting on 26 March 2008 for the following two reasons:
"(i) non-compliance with clause 2.3 of Town of Cambridge Residential Design Guidelines (Building Height)"; and
(ii) the non-compliance with clause 2.1.5 of the Town of Cambridge Residential Design Guidelines (Architectural Character)."
The issues
27 The following two issues arise for determination in the review:
1) Whether the proposed building height is consistent with the planning framework; and
2) Whether the proposed roof pitch and architectural character is consistent with planning framework.
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28 The two issues are independent of each other. However for this application of review to succeed, the applicant must succeed on both issues.
29 The Tribunal will address each issue in turn. Before turning to these two issues it is necessary to consider the character of the locality because an understanding of this broader matter is necessary in order to properly apply the planning framework to the two issues.
The character of the locality
30 The planning framework use phrases such as "respect the scale of buildings generally in their vicinity"; "respectful of the predominant character and style of existing development in the locality"; "desired height of buildings in the locality" or sometimes refers to "immediate locality" and or "streetscape".
31 A summary of the respondent's argument is that the proposal does not meet the locality requirements for the West Leederville Precinct or the immediate locality with reference to height and roof pitch.
32 A summary of the applicant's argument is that:
"[T]here is no consistent streetscape in Clune Avenue; that the immediate locality includes areas outside of the West Leederville Precinct; and further that the part of the immediate locality that is within the West Leederville Precinct does not share the defined character of the Precinct."
33 Ms Amanda Butterworth, an expert planner appearing for the respondent, argued that the subject land was located in the subprecinct 5c - Central West Leederville of the West Leederville Precinct of the Town of Cambridge. Ms Butterworth argued that the character of the locality was defined in general by the precinct requirements and in particular by the subprecinct requirements.
34 The West Leederville Precinct extends from Railway Parade in the south to Lake Monger Drive in the north and from the freeway and Thomas Street in the east to Gregory Street in the West.
35 The Statement of Intent for the West Leederville Precinct as a whole provides that:
"Because most of the original houses are modest in scale and even more so in their appointment, they have been vulnerable to replacement or insensitive alteration. However, in recent years a combination of
(Page 8)
- socioeconomic circumstances - smaller, more affluent households with a greater proportion of occupants in full time work and general embracing of heritage values by the community - has meant the "character" houses, often on small lots have become sought after. Their future is assured now more than ever.
Protection of this character will be the highest priority."
36 The subprecinct of Central West Leederville extends from Railway Parade in the south to Lake Monger Drive in the north and from Northwood Street, at the eastern end of Clune Avenue to west of St Leonards Avenue near the western end of Clune Avenue. A small section centred on Woolwich Street extends further west to Connelly Street. The review site is almost in the north east corner of the sub¡precinct. Clune Avenue is the most northern street containing houses in the sub-precinct. The part of Clune Avenue in the sub-precinct is quite short containing approximately 10 lots with half of the houses having frontages to the adjoining side streets; Northwood Street, Blencowe Street and St Leonards Avenue.
37 The description of the subprecinct Central West Leederville is as follows:
"Most houses are brick or rendered brick, with some timber, and terracotta tiled roofs or iron roofs, with front verandahs and small front gardens. The architecture is largely Federation Queen Anne, with a proportion of interwar California bungalow houses, increasingly so west of McCourt Street. The range of housing demonstrates the evolving development of housing in the first quarter of (the twentieth) century.
The character of this sub precinct is largely intact and resides in the area as a whole. No individual building is singled out as having special heritage value."
38 In her evidence, Ms Butterworth stated that in her opinion the proposal is "not respectful of the predominant character and style of existing development in the locality" and that the proposal does not "respect the scale of buildings generally in the locality".
(Page 9)
39 Mr James O'Donovan appearing for the applicant argued that Clune Avenue is a short street with a character significantly different from the character of the Central West Leederville sub-precinct.
40 Similarly Mr Sean Fairfoul, an expert planner appearing for the applicant, argued that:
"Clune Avenue has a variety of architectural styles that the proposed development would compliment. Clune Avenue is not identified as a 'normal' West Leederville street which are generally characterised by pitched roof historic residences."
41 Based on the viewing and the evidence submitted, including photographs, the Tribunal agrees with the arguments of the applicant. Clune Avenue does not have a consistent character and in general the houses do not share the characteristics of housing as described in the Central West Leederville sub-precinct. Most of the houses are recent (clearly not "Federation Queen Anne, with a proportion of interwar California bungalow houses"). Approximately half the houses in Clune Avenue face adjoining streets.
42 Clune Avenue is a short street and consequently nearby buildings visible at both ends of the street form part of the streetscape. In general, those buildings are modern and inconsistent with the character of the West Leederville subprecinct. On the other hand, houses at the northern end of St Leonards Avenue and Blencowe Streets are also visible from Clune Avenue and form part of the streetscape. In general these houses are typical of the character of the Central West Leederville sub-precinct.
43 The Tribunal finds that the impact of the nearby houses in St Leonards Avenue and Blencowe Street is not to develop a theme of a coherent character of the locality. Instead the nearby housing in St Leonards Avenue and Blencowe Street demonstrates that Clune Avenue is independent of the character of the locality and that Clune Avenue neither contributes to nor detracts from the character of the Central West Leederville sub-precinct.
Whether the proposed building height is consistent with the planning framework
44 There are two relevant planning requirements relating to height requirements: the R Codes and the Design Guidelines.
(Page 10)
45 Clause 2.3 of the Design Guidelines deals with building height. The maximum height restriction under acceptable development requirements is specified in cl 2.3 A1.1 which states that for West Leederville, Wembley and Floreat:
"Development which complies with the following is deemed to meet the relevant Performance Criteria … top of a skillion, curved or flat roof that does not exceed 7.0 metres in height."
46 The proposed dwellings have heights of 7.795 metres and 7.845 metres. The applicant agrees that the proposal does not meet the acceptable development requirements.
47 The Performance Criteria of the Design Guidelines state that "new development should meet these criteria:
"• Buildings which respect the scale of buildings generally in their vicinity, in terms of their height, and bulk and remain subservient to the green streetscape;
• Buildings which are respectful of the predominant character and style of existing development in the locality;
• Where the front of the building facing the street is broken up, presenting a varied and interesting façade to the street, rather than a continuous wall; and
• Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including where appropriate:
• Adequate direct sun to buildings and appurtenant open spaces;
• Adequate daylight to major openings to habitable rooms; and
• Access to views of significance."
(Page 11)
- "a) The building does not respect the scale of buildings generally in its vicinity, in terms of its height and bulk and is not considered to be subservient to the green streetscape.
b) It is considered that the building is not respectful of the predominant character and style of existing development in the locality.
c) The proposed wall height is not consistent with the desired height of buildings in the locality."
49 Further Ms Butterworth argued that:
"[I]t is considered that the current (proposed) height of the development would have the potential to adversely impact on the rear neighbouring property owner's access to views which would be better preserved if the development was undertaken in accordance with the Residential Design Guideline height requirements."
50 Mr Fairfoul argued that the design guidelines were of limited relevance because the proposed height complies with the requirements of the R Codes which take precedence over the design guidelines. He noted that the R Codes allow for local planning policies to supplement the provisions of the R Codes but that the local policies must be consistent with the provisions of the R Codes. Mr Fairfoul referred to cl 5.2 of the R Codes which provides:
"If a properly adopted local planning policy which came into effect prior to the gazettal of the Codes is inconsistent with the Codes, the Codes prevail over the policy to the extent of the inconsistency."
51 Furthermore, Mr Fairfoul argued that while cl 5.3.1(a) of the R Codes permits a local planning policy to vary the acceptable development provisions for height as set out in the R Codes, cl 5.3.1(b) limits the ability of a local planning policy to vary the performance criteria of the R Codes. Clause 5.3.1(b) provides that a local planning policy may contain provisions that "augment the codes by providing additional performance criteria … for any aspect of residential development that is not provided for in the [R Codes]".
52 With that background, Mr Fairfoul concluded:
(Page 12)
- "It is considered that the R Codes address building height and therefore it is not open for the Respondent to augment the Codes by providing additional Performance Criteria."
53 The applicant accepts that the proposal does not meet acceptable development standards but argues that the proposal complies with the performance criteria of the R Codes which in cl 6.7.1 P1 "Building Height" provides that new development should meet these criteria:
"Building height consistent with the desired height of the locality, and to recognise the need to protect the amenities of the adjoining properties, including, where appropriate:
• adequate direct sun to buildings and appurtenant open spaces;
• adequate daylight to major openings to habitable rooms; and
• access to views of significance"
54 Mr Fairfoul, in summary argued that the proposal was consistent with the height of the locality and that the marginal increase in height has no impact on potential views. He further argued that the separation between the buildings provides view corridors and that from that point of view the proposal protects views.
55 The witness statement of Ms Butterworth was based on the former 2002 R Codes. During the hearing, she agreed in general with the argument of Mr Fairfoul, except to maintain that the proposal fails the performance criteria of the R Codes in that it fails to protect views of significance and the proposed building height was not consistent with the desired height of the locality. Furthermore, Ms Butterworth argued that the local policy is relevant because it explains and describes the desired height of the locality. The Tribunal agrees that the local policies (residential design guidelines and precinct requirements) have relevance in explaining the desired height of the locality.
56 Dealing first with views, the Tribunal finds that it is unlikely that the marginal increase in height will cause a loss of views of significance. The wall height at the front of the proposal is less than 8 metres. The design guidelines permit a roof height of up to 10 metres. Any complying roof would cause potentially more loss of views than the proposal. Furthermore, as demonstrated on a drawing submitted by the applicant, the increased front setback reduces the
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- impact of the height. The possible views of significance are out towards Lake Monger. However, the park and the lake are on land that falls away from the site. A complying wall height on a complying front setback would block these potential views. However, more significant is the crosssection through the site which shows the Moreton Bay Fig trees immediately across the road from the subject land. The scale and height of these trees make the building height insignificant in terms of views. Even, disregarding the benefit of the proposed view corridors, the Tribunal finds that the proposal complies with the performance criteria of the R Codes in terms of protection of views of significance.
57 As observed earlier in these reasons, the desired height of the locality should not be determined in the context of the locality embracing the Central West Leederville sub-precinct while ignoring streetscape elements that are closer and more relevant. The desired height is indicated generally in the Design Guidelines where buildings are to respect the scale of buildings generally in their vicinity. The vicinity in this case includes the nearby three storey office building at the end of the street. After considering the evidence and the viewing of the street, the Tribunal agrees with the considered opinion of Council's own planners where in the assessment of this proposal the planners reported that:
"In comparison with other dwellings along the street, the scale and height of the proposed dwellings are not considered excessive. Other flat roof dwellings which exist, along Clune Avenue and within the immediate locality are of a similar or greater height and scale, including the (adjoining dwelling)".
58 Furthermore, the Council's policy requires the building height to be subservient to the green streetscape. The Moreton Bay Fig trees are a significant element of the streetscape. The relationship between the trees and the existing adjoining flat roofed dwelling (which is shown as slightly higher than the proposed dwellings) is such that the dwelling is clearly subservient to the green streetscape.
59 In addition, the increased setback and front landscaping will reduce the impact of the height. The Tribunal finds the proposed height is consistent with the scale and height of the immediate locality and is consistent with the planning framework.
(Page 14)
Whether the proposed roof pitch and architectural character is consistent with the planning framework
60 The respondent's main argument is that the proposed roof pitch (flat roof) is inconsistent with the character of the locality and the requirements of the precinct.
61 The Design Guidelines for architectural character commence with the following explanatory notes:
"Design should have respect for existing character, which can be expressed in either of two ways:
(a) by a genuine application of or reference to the established style, and its common elements, or
(b) by adopting a contemporary style which is still respectful of the established character."
62 The performance criteria for all precincts require new developments to be:
• Buildings which respect the height massing and roof pitches of existing housing in the street and immediate locality;
• Buildings which respect the architectural styles which characterise the immediate locality; and
• Buildings which relate to the palette of materials and colours (which) are characteristic of housing in the immediate locality:
63 There are no specific performance criteria for the West Leederville Precinct. However there are acceptable development criteria requiring primary roofs to be hipped and or gabled with a roof pitch between 30 and 40 degrees.
64 The proposal clearly does not meet acceptable development standards and the issue is compliance with the performance criteria. It should be noted that the respondent was so concerned about the loss of character of the locality that in 2005 the performance criteria were amended by deleting a provision that provided for:
(Page 15)
- "Buildings with contemporary and modern interpretations of pitched roofs, such a skillion or vaulted roofs which reflect traditional styles of roof pitches."
65 Ms Butterworth argued that:
"[A] review of development within Clune Avenue generally shows that, aside from two examples that were approved prior to the amended Residential Design Guidelines, all buildings along this road provide visible roof pitches. Further development in the surrounding streets is almost exclusively pitched roofs."
66 As found earlier in these reasons, Clune Avenue has a different character from the Central West Leederville sub-precinct and further that the sense of locality associated with Clune Avenue extends from the three storey office building at the eastern end to the contemporary houses in Tara Hill at the western end. Roof pitches and architectural styles are varied and inconsistent.
67 The Tribunal accepts the argument of Mr Fairfoul that the performance criteria do not require pitched roofs but rather they required buildings to respect the architectural style of the locality.
68 Mr Ahmad Abas, an award winning architect (awards for design), submitted evidence for the applicant and this evidence was not challenged by the respondent. In his evidence, Mr Abas stated that "[w]hilst certainly not typical of the predominant style in the immediate area, this building should be considered a well wrought expression of contemporary architecture". The Tribunal has already dealt with the issue of locality and does not accept that Mr Abas has the expertise or was asked to deal with the context of locality.
69 The evidence of Mr Abas is useful in the context of respect and design. The performance criteria do not require a replication of the existing style but merely require respect.
70 Whereas the Tribunal has found that there is no consistent style in Clune Avenue and the immediate locality associated with Clune Avenue, there is one consistent theme and that is that the more recent and/or notable houses are substantial, generally well designed with some refined attention to details. In that context the Tribunal is influenced by the evidence of Mr Abas where he stated:
(Page 16)
- "The design should not be considered 'bombastic' or 'extreme'. It is in fact, a restrained and simple design. The eloquence of its expression should be recognised as such.
The quality of the proposed details, materials and treatments suggest a high standard of finish.
The design is considered to be a proposition of worthy architectural merit."
71 Similarly the applicant submitted uncontested evidence from Yael Kurlansky, an award winning building designer constructing a house at 16 Clune Avenue "with the intention of residing there once complete". The evidence included the following relevant statements:
"There is no consistent rhythm to the housing in Clune Avenue (and) there is an eclectic mix of building styles in the street … I believe (the proposed dwellings) will be a welcome addition and contribute advantageously to the streetscape and the surroundings of the area."
72 The respondent did not submit any expert design evidence to support their argument that the proposal and the flat roofs did not respect the architectural styles of the locality. The respondent's planners in their report to Council stated that:
"… While this type of roof is not permitted under the acceptable development criteria, flat roofs have been permitted in the past as part of a general acceptance of the eclectic building designs along the street. These approvals have been granted on the basis that the area is not indicative of the overall character of West Leederville and is in close proximity to both the Hill of Tara and Lake Monger. As a result, a significant percentage of buildings in the immediate locality have flat or skillion roofs."
73 All the evidence suggests either a lack of flexibility in the application of the policy (Design Guidelines) or a failure to understand that the policy requires a respect of the character rather than a replication of the character. The lack of flexibility is demonstrated in the apparent assumption that because the maps show Clune Avenue in the Central West Leederville sub-precinct that any new development must respect the character of the sub-precinct even though Clune Avenue is not typical of the sub-precinct. Consistent with the opening statement in cl 2.1.5 of the Design Guidelines "Architectural Character of the Design Guidelines", the
(Page 17)
- Tribunal finds that the proposed design respects the existing character of the locality of Clune Street, by adopting a contemporary style which is still respectful of the established character.
74 The Tribunal finds thatthe proposed roof pitch and architectural character is consistent with the planning framework.
Conclusion
75 The Tribunal finds that Clune Avenue is independent of the character of the Central West Leederville subprecinct and that Clune Avenue neither contributes to nor detracts from the character of the Central West Leederville subprecinct. Similarly the proposal will not detract from the character of the subprecinct. The locality of Clune Avenue extends in an eastwest direction along the park and includes the three storey office building at the eastern end and the modern buildings at the western end, on the edge of the Hill of Tara subprecinct.
76 The height and architectural style of the proposed dwellings are consistent with other buildings in the locality and are consistent with the planning framework.
77 Therefore the Tribunal sets aside the respondent's decision and approves the proposed development. In response to orders requesting draft without prejudice conditions, the respondent's agent advised in a letter dated 20 May 2008 that "in the event that the Tribunal approves the development, the Respondent does not have any specific conditions it seeks to have imposed".
Orders
78 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 26 March 2008 to refuse development approval for two new group dwellings at No 4 (Lot 1) Clune Avenue, West Leederville is set aside and a decision is substituted that development approval is granted.
(Page 18)
- I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER
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