| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : O'SULLIVAN and CITY OF FREMANTLE [2011] WASAT 162 MEMBER : MR J JORDAN (MEMBER) HEARD : 5 JULY 2011 DELIVERED : 6 OCTOBER 2011 FILE NO/S : DR 71 of 2011 BETWEEN : ANNETTE O'SULLIVAN Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords: Town planning - Development - 1.8 metre high fence on front boundary - Residential zone - Policy that front fences be solid only to 1.2 metres from ground - House on heritage inventory - Other houses in street on heritage inventory - Site opposite access and egress to carpark for multistorey block of multiple dwellings - Fence approved subject to being visually permeable above 1.2 metres - Fence approved subject to a visual truncation at the crossover and accessway to the carport - Amenity of the house on the site - Impact of light and noise from use of carpark opposite Streetscape
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Legislation: City of Fremantle Local Planning Scheme No 4, cl 4.2.1(a), cl 7.1, cl 9.4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2.5, cl 6.2.5 A5, cl 6.2.5 P5, cl 6.2.6, cl 6.2.6 A6, cl 6.2.6 P6 Result: Application for review allowed
The approval of 9 February 2011 revoked and replaced with an approval of the fence proposed subject to conditions Category: B
Representation: Counsel:
Applicant : Selfrepresented
Respondent : Mr T Burkett (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of Fremantle
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review of the decision of the City of Fremantle to impose, on an approval of a 1.8 metre high fence across the front of a lot in Suffolk Street, Fremantle, conditions that required the fence to be amended to be visually permeable above 1.2 metres and include a visual truncation at the junction of the fence with the vehicle driveway. 2 The purpose of the fence was to shield the resident of the house on the lot from disturbance from light and noise associated with cars leaving and entering the carpark of a multistorey block of multiple units on the opposite side of the road. 3 The house is listed on a heritage inventory as are a number of other houses in the street. 4 The Tribunal found the fence to be consistent with the intent of the streetscape, heritage and performance criteria for development at the eastern end of Suffolk Street. The proposed fence was granted conditional planning approval.
Introduction 5 These proceedings involve an application brought by Mrs Annette O'Sullivan (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Fremantle (City or respondent) to impose conditions requiring a proposed 1.8 metre high front fence to be visually permeable above 1.2 metres and for the fence to be truncated to a height of 0.75 metres adjacent to the driveway access to the house at No 26 Suffolk Street, Fremantle (site). 6 On the day of the hearing the Tribunal viewed the site and the locality accompanied by the applicant and the respondent’s representative.
Site and locality 7 The site has an area of about 680 square metres and a frontage of about 15.5 metres to Suffolk Street at the southeast boundary. The house on the lot is set back about 5 metres from the front boundary. A picket fence about 1 metre high extends across the front boundary except for a (Page 4)
gap about 5 metres wide for a vehicle accessway to a carport between the house and the southwestern side boundary of the site. 8 The house on the lot is single storey, of red brick with a red tiled roof, built in 1946 in what is described as interwar Californian Bungalow style. At the northeastern frontage of the house are windows to a bedroom. Between those windows and the carport is a front veranda which has opening onto it the front door and windows to a living room. There are three steps up from the front yard to the veranda. 9 The front yard of the site has been paved and a wooden pergola structure has been extended from the front wall above the bedroom window to posts abutting the front fence. The front yard is generally level which means that at the northeastern boundary the front yard is about 300 millimetres lower than the footpath of Suffolk Street which slopes gently down east to west from South Terrace to Marine Terrace. 10 Suffolk Street road reserve is about 25 metres wide. A median strip in the middle of the road comprises alternate sections of planting and parking bays along its length. The street has verge parking and one carriageway in each direction. 11 Suffolk Street can generally be described as a residential street of mostly single storey dwellings on lots of about the same dimensions as the site. The house on the site and certain other houses have been identified on the respondent's Municipal Heritage Inventory. At the western end of Suffolk Street are more modern grouped dwelling developments. There have also been density concessions granted on a number of lots where modern grouped dwelling developments have been allowed at the rear of an original dwelling preserved at the street frontage. 12 Significant in this matter is the development on the lot directly opposite the site on the southeastern side of Suffolk Street. Immediately opposite the site is the entrance and exit to an extensive area of bitumen carparking. The access to this carpark slopes down to about a metre below Suffolk Street. This entrance and exit has a sliding metal barred gate which is operated by a driver using a remote control device. The carpark has a 1.8 metre high dark green Colorbond fence about 30 metres long. 13 The carpark is for the residents of Arundel Court, a building on the corner of South Terrace and Arundel Street, the next street to the south of Suffolk Street. Arundel Court is an eight storey block of 79 multiple dwellings built in about the 1960s. The lot containing Arundel Court and (Page 5)
its carparking area 'wraps' around a vacant lot on the corner of Suffolk Street and South Terrace. This corner lot has a retaining wall about 1.4 metres high and about 15 metres long on Suffolk Street. To the southeast of the site on the opposite side of South Terrace is the Fremantle Hospital.
Planning framework 14 The site is zoned City Centre under the Metropolitan Region Scheme and is zoned Residential R25 under the City of Fremantle Local Planning Scheme No 4 (LPS 4). Under LPS 4, the site is in Local Planning Area 4 South Fremantle Sub-Precinct 4.3.1. The house on the site is listed in the City's Municipal Heritage Inventory as a Management Category 3 property and is also included in the City's Heritage List. 15 Clause 4.2.1(a) of LPS 4 sets out the objectives for the Residential zone including: ... ii) safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area[;] ... iv) recognise the importance of traditional streetscape elements to existing and new development[.] 16 The site is within the area covered by the City's Local Planning Policy D.G.F 29 - Suffolk to South Streets Local Area (Policy DGF 29). 17 The objectives of Policy DGF 29 include: … 3. Endeavour to meet the amenity expectations of residents concerning the quality of their environment including its pleasantness, character, beauty, harmony in the exterior design of buildings, privacy, preservation of views and security, noise and traffic movement ... 18 Clause 3 of Policy DGF 29 states that development should be consistent with the LPS 4, the 'Residential Planning Codes', now replaced by the Residential Design Codes of Western Australia (2010) (Codes), and the City’s policies. Clause 3 also states that development should contribute to the traditional streetscape and amenity of the area. (Page 6)
19 Also relevant is the City’s Local Planning Policy 2.8 Fences Policy (Fences Policy). At cl 1.2(a) of the Fences Policy it states that the Council may exercise discretion to vary the height of fences in the primary street set back area where: 20 At cl 1.3 of the Fences Policy it states: Council will permit solid fencing for the total length of the boundary where a fence is proposed to be constructed within the street setback area of a property abutting any of the following roads to avoid traffic noise and/or headlight glare; ... 21 Suffolk Street is not one of the eight roads listed under cl 1.3 of the Fences Policy. 22 Clause 1.4 of the Fences Policy states: 23 At cl 2 of the Fences Policy it states that in respect to properties included on the Heritage List pursuant to cl 7.1 of LPS 4, the following requirements apply: 24 Clause 3.1 of the Fences Policy states: (Page 7)
3.1 Where walls and fences at vehicle access points and street corners do not meet the 'Acceptable Development Criteria' of Clause 3.2.6 of the RCodes, the Council will consider the 'Performance Criteria' of Clause 3.2.6 of the RCodes to be satisfied when one or more of the following criteria are satisfied: 25 Clause 5 of the Fences Policy provides for consultation with adjoining property owners in accordance with cl 9.4 of LPS 4 where discretion is sought for a front fence of solid construction over 1.2 metres. 26 The provisions of cl 6.2.5 and cl 6.2.6 of the Codes are relevant to the consideration of this matter. Under 'Performance Criteria' at cl 6.2.5 P5 of the Codes, front fences should take account of: 27 Clause 6.2.5 A5 of the Codes under the heading 'Acceptable Development' states that the performance criteria would be met by a front fence within the primary street setback visually permeable 1.2 metres above natural ground level. 28 Under the Codes 'visually permeable' means: 29 Clause 6.2.6 of the Codes is concerned with sight lines at vehicle access points. The performance criteria under cl 6.2.6 P6 of the Codes (Page 8)
require adequate sight lines to be provided at vehicle access points. Under the acceptable development criteria, at cl 6.2.6 A6 of the Codes, the performance criteria would be met if walls and fences are truncated or reduced to no higher than 0.75 metres within 1.5 metres where they join vehicle access points, including where a driveway meets a public street.
Proposed development 30 A plan of the proposed front fence before the Tribunal was at page 9 of the applicant's bundle of documents (Exhibit 6) with the label 'Proposed' and date stamped by City of Fremantle 9 February 2011. The plan of the proposed fence shows, starting at the eastern end, a pillar 700 millimetres wide and 1,600 millimetres high. Next to that pillar there would be a section about 1.5 metres wide solid to about 700 millimetres above the footpath with open railings above. There would then be approximately 8 metres of blank fence from just over 1.6 metres high to somewhere near 1.8 metres high because of the slope of the footpath. The plan then shows a 1 metre wide and 1.8 metre high barred pedestrian gate. There would then be a further pillar about 350 millimetres wide then a gap for the driveway 3.8 metres wide. The driveway gap would have a sliding metal barred gate. There would then be on the common boundary with the lot to the west, a pillar approximately 2 metres high and 350 millimetres wide. The fence would then return along the western side boundary of the site to adjacent to the carport. This side fence would comprise pillars with visually permeable sections between. 31 Suffolk Street slopes down from east to west and so, to be level at the top, the proposed fence would be 1.6 metres high at the eastern end and about 2 metres high at the western end. The measurements shown on the plan were described as being above the footpath level; this means that from inside the site, the eastern end of the fence would be about an additional 300 millimetres above the level of the front yard. 32 To note is that the walls of the house on the site are constructed on limestone block foundations so that the floor level is approximately 600 millimetres above the level of the front yard. 33 The applicant said cars exiting Arundel Court came up from the carpark to street level and waited while the electronic gate opened. The lights of these vehicles shone directly into her bedroom and into her lounge room and its adjacent dining area. This occurred frequently because of the number of cars using the parking area and occurred at all hours of the night. During the day glare from vehicles at certain times had the same effect. The applicant said the hedge previously across the front (Page 9)
of the site had blocked the light and the fence was now required to make living in the house tolerable.
Council's decision 34 The Council approved the application for the front fence subject to conditions that included: 2. Prior to the commencement, revised plans shall be submitted for approval by the Chief Executive Officer, such plans shall incorporate the changes; 35 The applicant then proceeded to lodge an application for review of the Council's decision.
Issues 36 The issues identified in this matter by the parties can be stated as: 1) Whether the proposed development is consistent with the established pattern of fences within the streetscape surrounding the site. 2) Whether the proposed development is compatible with and complementary to the heritage character of the listed place with respect to height, materials and heritage character. 3) Whether the proposal will promote surveillance and enhance streetscape and therefore meet the performance criteria of cl 6.2.5 of the Codes. 4) Whether the proposal provides adequate sight lines at the vehicle access point and therefore meets the performance criteria at cl 6.2.6 of the Codes. 5) Whether approval of the proposed development would be contrary to orderly and proper planning. (Page 10)
Issue 1: Whether the proposed development is consistent with the established pattern of fences within the streetscape surrounding the site 37 The parties supplied photographs of Suffolk Street and the Tribunal viewed the site and the locality. The Tribunal found that the length of Suffolk Street included a frame of mature trees on the verge with parked cars along the kerb on each side, with more cars parked down the middle of the road leaving one carriageway in each direction. Beyond the trees the existing houses contributed to the streetscape. 38 At particular locations along Suffolk Street, the Tribunal noted that there were differences that characterised the surrounding streetscape at that location. In general terms, at different locations along Suffolk Street was one of the three different streetscape types. At the western end the immediate streetscape was characterised by buildings built up to the front boundary and lots with 1.8 metre high boundary fences with dwellings set behind. 39 At the eastern end of Suffolk Street, where the site is located, the surrounding streetscape was characterised by, on the northern side, single storey houses set back generally about 4 metres in alignment with the house on the site with low front fences and front yards adapted for the parking of motor cars. On the south side of the street at the eastern end was the 30 metre length of 1.8 metre high Colorbond fence and access to the Arundel Court carpark with the multistorey building beyond and the 1.4 metre high retaining wall on the lot on the corner with South Terrace. 40 Between the two ends is about 100 metres of Suffolk Street where the streetscape is characterised by a mixture of heritage houses, many from the 19th century, mixed with more modern houses, mostly single storey although some have grouped dwellings to the rear, and all with fences that are either about 1.2 metres high or, if higher, visually permeable above 1.2 metres. 41 The respondent submitted that only the residential zoned lots in Suffolk Street were to be considered in the analysis of the streetscape and the mixed use lots at each end should be ignored. This was because the mixed use zoned lots had the potential to be developed for nonresidential uses that would have a different impact on the street. The respondent noted that the Arundel Court lot is zoned mixed use. 42 The Tribunal considers that, as described above, there is not a uniform streetscape for Suffolk Street. The streetscape comprises those (Page 11)
elements that can be seen when viewed at a particular location, whether stationary or when moving along the street. There may be a different streetscape at particular locations in the future because of the mixed use zoning of some lots but the Tribunal would be cautious to ignore the influence of existing development in determining the type of streetscape at those particular locations. 43 The respondent made particular reference to the fences within the streetscape 'surrounding' the site. This is consistent with the Tribunal's view that the streetscape might be observed as having particular characteristics at different locations along Suffolk Street. The proposed fence is not consistent with existing fences on the north side of Suffolk Street but is consistent with the contribution to the streetscape made by the fence on the south side of the street opposite the site. The proposed fence would be different from the fences on adjoining lots but would reflect, in height at least, the 1.8 metre high fence opposite. 44 There is an established pattern of fences in Suffolk Street. The question arises as to whether altering that existing pattern might be contemplated. Given that there are mixed use zoned lots at the eastern and western ends of Suffolk Street, it must be contemplated that development in these locations might occur in the future and include more than one storey at the building line. This would influence the streetscape at those locations in Suffolk Street. It is necessary to determine whether the change in streetscape at the eastern end of Suffolk Street that would result from the proposed development might be allowed. 45 The proposed fence would not be consistent with the existing pattern of fences for the majority of the central part of Suffolk Street. Given the location of the site at the eastern end of Suffolk Street, and the existing fence opposite and the existence of multiple use zoned lots, the Tribunal has formed the view that the proposed fence should not be refused simply because it is different from that existing on the site and on the immediately adjoining lots. The fence being different from that existing on the site is not considered of itself to be a reason for refusal in the locality surrounding the site at the eastern end of Suffolk Street. This leads to consideration of the other issues raised in this matter.
Issue 2: Whether the proposed development is compatible with and complementary to the heritage character of the listed place with respect to height, materials and heritage character 46 With this issue the respondent has paraphrased the test found in the Fences Policy at cl 2.1 cited above which is relevant to heritage listed (Page 12)
properties. Clause 2.2 of the Fences Policy also cited above provides for building materials for fences of heritagelisted properties to be specified. 47 The City commissioned Annabel Willis Architecture Pty Ltd, heritage architects, to prepare a heritage assessment of the house on the site in January 2011 (heritage assessment). In considering heritage values under the heading 'Aesthetic' the heritage assessment listed the heritage value of the house on the site as 'moderate the place contributes positively to the streetscape and is an example of the inter-war Bungalow style of architecture'. 48 The house was assessed as having heritage attributes of high 'integrity' and high 'authenticity' and it was said the overall significance of the place is 'some'. The other categories of significance available but not selected were 'considerable' or 'limited or none'. 49 Clause 7 of the heritage assessment drew the following conclusions: 1) Overall, the proposed demolition of the timber picket fence is considered acceptable as sections of the fence are in poor condition. 2) The proposed new rendered masonry and iron fence is considered acceptable as it is reversible, there are other fences of this nature in height in the street, the place is of some significance, the previous high level thick hedge would have had a similar effect on the visibility of the place from the street … . 3) It is considered that the proposed materials and overall design is acceptable, however, consideration could be given to the use of some face brick. 4) The openings (driveway, gate and half height opening) should all be visually permeable. 50 In Table 3 at cl 6 of the heritage assessment it was stated that: The height of the fence and degree of permeability will have an impact on the streetscape and visibility of the house from the street. 51 It was also stated: Overall it is considered that the degree of changes acceptable in light of the place's level of some significance. 52 The respondent referred to the evidence of the picket fence being in place for many years and the impact of the proposed fence on the view of the heritage place. (Page 13)
53 The Tribunal has formed the view from the heritage assessment that the proposed front fence will have an impact but that the change that will result from the fence is acceptable in this regard. This is because of the level of significance of the place being 'some', the views of the house on the site that will remain through the proposed openings and the possibility of the material to be used in the proposed fence being face brick consistent with the style of the existing house.
Issue 3: Whether the proposal will promote surveillance and enhance streetscape and therefore meet the performance criteria of cl 6.2.5 of the Codes 54 Previously, along the front boundary of the site adjacent to the picket fence there was a hedge about 2 metres high, cultivated to shield the house from glare and light from vehicles entering and exiting the carpark on the opposite side of Suffolk Street. This hedge did not 'promote' surveillance and while it may have had aesthetic qualities it is understood it was the only hedge of this type in the street. The hedge died from what the applicant describes as age and either insect or fungal attack. The applicant said that maintaining the hedge had required time consuming physical effort. 55 The respondent suggested alternatives to the proposed fence might be considered, such as a hedge similar to that which died, or shutters. 56 It is not clear to the Tribunal how any new fence could 'promote' surveillance as required under cl 6.2.5 P5 of the Codes. The proposed fence would allow surveillance of some of the street at an oblique angle from the habitable rooms and the front door because of the gap at the eastern end and the new gates at the western end. A hedge might offer less surveillance than the proposed fence because of the absence of these gaps. 57 It must be said that the proposed fence would not 'enhance' the streetscape. The site is, however, in that section of Suffolk Street that features the Colorbond fence at the Arundel Court carpark. The Tribunal believes it arguable that if the fence includes the proposed gaps and is of a material consistent with the style of the house on the site, then the fence need not markedly detract from this section of the streetscape of Suffolk Street. (Page 14)
Issue 4: Whether the proposal provides adequate sight lines at the vehicle access point and therefore meets the performance criteria at cl 6.2.6 of the Codes 58 The condition of approval 2(b) that is the subject of this review is a restatement of the acceptable development criteria for sight lines at cl 6.2.6 A6 of the Codes which requires a truncation or reduced height to no higher than 0.75 metres within 1.5 metres of where the fence adjoins a vehicle access point. The respondent submitted that if the imposed condition 2(b) were not complied with then the applicant must address the requirements of cl 3.1 of the Fences Policy, cited above, which effectively adds to the acceptable development criteria for fences on properties on the Heritage List under LPS 4. 59 The respondent said that the proposed fence would not satisfy truncation and height requirements of the acceptable development criteria at cl 6.2.6 A6 of the Codes or the requirements of cl 3.1(a) of the Fences Policy because a certificate from a traffic engineer was not provided. 60 The applicant commented that the driveway width of 3.8 metres and the adjacent 1 metre wide gate provided adequate sight lines for vehicles and pedestrians. 61 At the hearing the parties commented on the possibility of the opening with the pedestrian gate being 1.5 metres wide and visually permeable. The applicant said this would compromise the objective of shielding the sitting room and adjacent eating areas of the house from light and glare from vehicles on the road and in the driveway of Arundel Court. 62 The Tribunal would comment that the acceptable development listed at cl 6.2.6 A6 of the Codes and cl 3.1 of the Fences Policy do not necessarily exhaust the means by which the Performance Criteria at cl 6.2.6 P6 of the Codes might be addressed. The Tribunal has formed the view that adequate sight lines could be provided at the eastern edge of the driveway. This could be achieved by there being adjacent to the proposed pillar a 1.5 metre wide opening that is visually permeable, at least above 0.75 metres above the footpath. This opening could include the proposed pedestrian gate which of course does not mean the gate would have to be 1.5 metres wide. The Tribunal considered there would remain a solid fence sufficient to shield the living room from much of the direct light and glare from over the road. (Page 15)
Issue 5: Whether the approval of the proposed development would be contrary to orderly and proper planning 63 It was the respondent's submission that the proposed solid fence would not be consistent with orderly and proper planning. As referred to above in the discussion of the other issues, the respondent said the proposed fence would not satisfy the requirements of LPS 4, the Codes and the Fences Policy in respect of impact on amenity, streetscape and sight lines for a heritage listed house in a residential street in a residential zone. 64 In the discussion of the other issues, the Tribunal has found that the proposed fence would be inconsistent with particular standards in the various planning instruments, but there was a case for concluding that the fence would not necessarily be completely at odds with the objectives for the zone. 65 In the circumstances of this application, the Tribunal has formed the view that, to the extent that the fence would be inconsistent with certain standards in the planning instruments, it can be argued that, relative to performance criteria, the fence would be consistent with the orderly and proper planning of the locality surrounding the site. This is because of the character of the particular streetscape where the fence would be located within Suffolk Street and the effect the fence would have on the amenity of the immediate locality, including the house on the site. 66 The Tribunal has concluded that in the particular circumstance of the application the proposed fence can be allowed subject to appropriate conditions.
Conditions 67 The respondent provided a schedule of conditions, without prejudice to its position, it would want imposed if the development were allowed. The first of these conditions recommended the proposed fence be a maximum height of 1.8 metres above the natural ground level adjacent to the fence. The applicant insisted that the level front yard was natural ground level. As noted above, the footpath adjacent to the site is about 300 millimetres higher than the site at the eastern end and slopes down to the west. 68 The sketch of the proposed fence shows a height of 1.6 metres above the footpath at the eastern end of the front boundary and about 2 metres above what is assumed to be the footpath level of the western end. There (Page 16)
is insufficient labelling on the proposed sketch to accurately identify the relative levels of the site and the footpath. The photographs appear to show the driveway and footpath approximately level at the western end of the site. 69 The applicant said she wanted the fence to be 1.8 metres above the front yard. It is difficult to determine exactly what height would result if the fence were then measured from the level of the footpath at the front of the site, but it is assumed that it would be about the height shown on the sketch. The Tribunal has formed the view that the heights shown on the sketch of the proposed development are reasonable in the circumstances. The Tribunal has concluded that a front fence, a maximum of 1.8 metres above the level of the site adjacent to the fence, would achieve the applicant's objectives. 70 The second condition listed by the respondent required that the solid portion of the fence be of face brick in a colour to the satisfaction of the Chief Executive Officer of the City. The respondent explained that this was to ensure the brick used was compatible with the bricks of the existing house. The applicant was concerned that having to seek this approval from the City would cause delay. The Tribunal agrees with a condition that requires the fence to be face brick appropriate for the existing house and is satisfied the City would assist in identifying a suitable brick without delay. 71 A third recommended condition was a reinstatement of approval condition 2(b) which was the subject of the application for review. As discussed above, the Tribunal has concluded that a truncation is not required if the section of visually permeable fence that would include the pedestrian gate is widened to 1.5 metres. An opening adjacent to the pillar of the gate at least 1.5 metres wide, visually permeable at least 0.75 metres above the footpath level, would serve this purpose. The pedestrian gate could occupy some of this 1.5 metre wide space.
Orders (Page 17)
plan titled 'Proposed' and date stamped 9 February 2011 by the City of Fremantle, as amended by the conditions of this approval. (2) The fence is to be a maximum height of 1.8 metres above the level of the front yard of No 26 Suffolk Street, Fremantle adjacent to the fence. (3) The solid portion of the fence shall be of face brick construction in a brick colour to the satisfaction of the Chief Executive Officer, City of Fremantle. (4) The opening in the front fence to include the pedestrian gate adjacent to the pillar at the eastern edge of the driveway is to be not less than 1.5 metres wide and is to be visually permeable above 0.75 metres above the level of the adjacent footpath. |