PARIS and CITY OF FREMANTLE
[2009] WASAT 222
•27 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PARIS and CITY OF FREMANTLE [2009] WASAT 222
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 27 OCTOBER 2009
DELIVERED : 27 OCTOBER 2009
FILE NO/S: DR 328 of 2009
BETWEEN: JUSTIN PARIS
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Two storey plus loft building with dormer windows - Disputed condition requiring deletion of habitable rooms within the roof space - Whether 'external wall height' development standard is exceeded by dormer - Whether vertical face of dormer is a 'wall' - Visual impact - Height, bulk and scale of third level - Presentation as essentially three storey development, rather than two storey development - Locality comprised exclusively of single to two storey and predominantly single storey buildings - Words and phrases: 'wall'
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 1.7.3, cl 5.8.1, cl 10.2.1, Sch 1, Sch 12 cl 7, cl 7.1
Planning and Development Act 2005 (WA), s 252(1)
Result:
Condition confirmed but varied for clarity
Category: B
Representation:
Counsel:
Applicant: Mr PA Ellenbroek (Representative)
Respondent: Ms AJ Butterworth (Representative)
Solicitors:
Applicant: Planning Solutions (Aust) Pty Ltd (Town Planners)
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Justin Paris sought the deletion of a condition of development approval for a two storey plus loft building with gabled dormer windows which required him to delete the habitable rooms within the roof space. The condition was imposed on the City of Fremantle's understanding that the vertical face of a dormer is a 'wall' and that the third level of the proposal therefore exceeded the maximum 'external wall height' development standard.
The Tribunal delivered an oral decision in which it came to the same conclusion as the Council, that the loft level should be removed, but for a different reason.
The Tribunal determined that the vertical face of the dormers are not 'walls' and therefore that the third level of the proposal does not exceed the maximum external wall height development standard. However, the Tribunal found that, in the circumstances of the case, the proposed third level would have a significant adverse visual impact on the streetscape and the existing and likely future development in the locality, in consequence of its height, bulk and scale. In particular, the building would present as a three storey development in an area that is, and is likely to remain, exclusively single to two storeys in height. A three storey presentation in this locality would be entirely discordant and incongruous in scale.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
Introduction
These proceedings involve an application brought by Mr Justin Paris (applicant), under 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 Council) to grant conditional development approval for the construction of a two storey, plus loft, building on the rear or eastern half of Strata Lot 4 on Strata Plan 16033 located at No 36 Paget Street, Hilton (site).
Site and locality
The site is located on the south-eastern corner of the intersection of Paget Street, which runs northsouth, and Rennie Crescent, which (in this location) runs eastwest. The proposed building would have a frontage to Rennie Street to the north and also to a private right of way, which has a width of approximately five metres, to the east.
The front or western half of the site comprises a single storey shop building, currently used as a café, that addresses Paget Street. The shop building presents to Rennie Crescent to the north with a parapet wall equivalent to approximately two storeys in height close to the intersection of Paget Street and Rennie Crescent, reducing to approximately one and a half storeys in height for most of its length, and then to approximately one storey in height where it abuts the location of the proposed building. The shop parapet is set back approximately three metres from the Rennie Street frontage, and the area between the shop parapet and the Rennie Street frontage is used for seating of café patrons under an awning.
The site is zoned 'Neighbourhood Centre' under the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme). Two narrow properties to the south of the site also have this zoning. The site is located in Local Planning Area 7 - Hilton under the Scheme and is therefore subject to cl 7 of Sch 12 of the Scheme to which I will refer below.
The locality of the site is mixed in terms of land uses and somewhat mixed in terms of built form. The properties to the south of the site addressing Paget Street comprise generally one storey commercial buildings with a one to two storey high parapet and one to two storey residential buildings to the rear of the commercial buildings. Across Rennie Crescent, to the north of the site, are single storey buildings accommodating a variety of community uses, including a health centre and kindergartens, on land reserved for 'Community Facilities' under the Scheme. Diagonally across the site, to the northeast, is a single storey aged housing development. To the east of the site, across the right of way, on the west side of Paget Street and to the south of the commercial buildings there are generally single storey grouped dwellings and single houses on land zoned 'Residential' under the Scheme.
Proposed development
On 19 August 2009, the Council's Planning Services Committee resolved to approve the proposed development, subject to five conditions. The Council's assessing officers had recommended that the Council should grant approval to the proposed development, subject to four conditions. It is the fifth condition, condition 5, which is in dispute in this review.
The proposed development compromises, at ground floor, a garage accommodating three vehicles, toilet facility and bike rack, a carport accommodating three vehicles, a lobby and an office with an area of 63.8 square metres, including kitchen and toilet facilities; at the second level, two tourist accommodation units of 72.3 square metres and 91.4 square metres; and at the third level, loft spaces for each tourism accommodation unit with areas of 17.7 square metres and 26 square metres.
The loft spaces compromise the only bedroom of one of the tourist accommodation units and the second of two bedrooms of the other tourist accommodation unit. However, it would be possible to combine the living area and dining area of the single bedroom unit at the second level and to convert the dining area into a bedroom for that unit. The loft spaces are each located substantially within the overall roof form that is proposed to be clad with Colorbond at a 37.5 degree pitch.
Each loft space is proposed to be served by a gabled dormer on the northern elevation. Each dormer would substantially comprise a window with small sections of fibre cement plank cladding adjoining each side for approximately two-thirds of the height of the window. The window would have a maximum width of about 2 metres and a maximum height of about 1.7 metres. The part of the window above 1 metre in height has a triangular shape, occupying the whole vertical face of the dormer. There are also proposed to be some fibre cement plank cladding elements at the third level on the eastern, western and southern elevations.
The garage and office at the ground level, and part of the tourist accommodation units above, would have a zero setback to Rennie Crescent, and the lobby and the remainder of the tourist accommodation units at the second level would have a setback of 1.5 metres to Rennie Crescent. The vertical part of the dormers would have a setback of 1.5 metres, and the eaves above the dormers would project to within approximately 0.6 metre to 0.7 metre of the Rennie Crescent frontage.
While the dormers and lofts generally would be substantially comprised within the roof form, unusually in this case, because of the very limited setback of the proposed building generally, and of the dormers in particular, from the Rennie Crescent frontage, the size of the dormer windows, the fibre cement plank cladding elements on the eastern and western elevations at the third level, and the 3 metre setback of the parapet wall of the shop from Rennie Crescent, the proposed building would present as essentially three storey development, rather than two storey development, when viewed from Rennie Crescent and from Paget Street in the vicinity of the intersection with Rennie Crescent. This is unusual, because often two storey development with a loft and gabled dormers would present as essentially two storey development.
Disputed condition and issues for determination
Condition 5, which was imposed by the Council's Planning Services Committee, but was not recommended by the Council's professional staff, states as follows:
The submission of revised plans to the satisfaction of the Chief Executive Officer, City of Fremantle. Such plans showing the deletion of the habitable rooms within the roof space in order for the proposed development to comply with the wall height requirements of Schedule 12 of LPS4.
Mr Paris seeks the deletion of this condition.
While, at a directions hearing on 11 September 2008, only two issues were identified for determination, it became clear during the hearing that there was also a third issue requiring resolution. The parties were invited to present evidence on this third issue and also addressed it in their closing submissions.
The issues for determination in relation to the disputed condition are:
1)What is the external wall height of the proposed development for the purposes of cl 7.1 of Sch 12 of the Scheme?
2)If the external wall height of the proposed development exceeds the standard prescribed by cl 7.1 of Sch 12 of the Scheme, whether discretion should be exercised under cl 5.8.1 of the Scheme to vary the standard so as to allow approval of the application without the imposition of Condition 5.
3)If the proposed third level does not exceed the standard prescribed by cl 7.1 of Sch 12 of the Scheme, whether the visual impact of the building, in terms of the height, bulk and scale of the third level, is acceptable on a merit assessment of the application.
What is the external wall height of the proposed development?
Clause 7.1 of Sch 12 of LPS 4 prescribes a 5.5 metre 'maximum external wall height' for land zoned 'Neighbourhood Centre' within Local Planning Area 7 Hilton. It is common ground that, at the second level, the external wall height of the proposed development exceeds 5.5 metres by a modest amount above the lobby in the central part of the proposal and at the western end of the Rennie Crescent elevation. However, it is also common ground that discretion can and should be exercised under cl 5.8.1 of the Scheme to allow these variations and that condition 5 does not seek to address these exceedences.
The key question in dispute before the Tribunal, in relation to the first issue for determination, is whether the external wall height of the development is the height of the vertical face of the dormer. The Council contends that the vertical face of the dormer is an 'external wall' of the building, whereas Mr Paris contends that it is not an external wall but, rather, is part of the roof form.
The expressions 'external wall' and 'external wall height' are not defined in LPS 4 or in the PD Act. Under cl 1.7.3 of LPS 4, these expressions 'shall have their normal and common meanings'. The noun 'wall' is relevantly defined in The Macquarie Dictionary (4th ed, 2005) at 1585, as:
An upright work or structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room.
While the vertical face of the dormers are 'an upright work or structure' on the northern elevation, they are not 'one of the upright enclosing sides of a building or a room'. The third level of the proposed development is contained substantially within the roof form. It does not have upright, enclosing sides. The vertical face of the dormers is not a 'wall' and, therefore, not an 'external wall'; rather, it is part of the roof form of the building.
This interpretation is confirmed by the definition of 'loft' in Sch 1 of the Scheme. 'Loft' means:
A habitable room or non habitable space contained wholly within the roof of a building including any space served by dormer type windows which may project forward of the main roof pitch.
This definition indicates that, for the purposes of the Scheme, a dormer window is considered as part of the roof, even though it may project forward of the main roof pitch. The dormers in this case substantially comprise dormertype windows. They are part of the roof form, not external walls, of the building.
Whether discretion should be exercised
Clause 5.8.1 of LPS 4 enables variation of the external wall height standard in cl 7.1 of Sch 12 of the Scheme if the Council, or, relevantly, the Tribunal on review, is satisfied in relation to each of the following:
a)the variation would not be detrimental to the amenity of adjoining properties or the locality generally,
b)degree to which the proposed height of external walls effectively graduates the scale between buildings of varying heights within the locality,
c)conservation of the cultural heritage values of buildings onsite and adjoining, and
d)any other relevant matter outlined in Council's local planning policies.
As noted earlier, it is common ground that discretion can and should be exercised under cl 5.8.1 to vary the minor exceedences of the external wall height standard in relation to the second level. Ms Butterworth, a town planner who gave evidence on behalf of the Council, said in relation to para (a) of cl 5.8.1 that:
It is considered reasonable to allow a two storey development as the wall height of this is not dissimilar to the wall height of the parapet wall to the adjacent shops.
In relation to para (b), Ms Butterworth said that the two storey components 'would present a graduation between the height of the parapet wall of the shop and the single storey residential development to the east'.
In relation to para (c), Ms Butterworth pointed out that while adjoining buildings are not on the heritage list, the Hilton precinct is a heritage area under the Scheme. Council's Heritage Area Policy says that new residential development 'should reinforce and complement the garden suburb character and streetscape character of Hilton'. However, the 5.5 metre external wall height development standard contemplates two storey development on the site. Furthermore, the site is separated from residential development by the five metre right of way. The exceedences of the maximum height standard at the second level of the proposal do not in themselves compromise the conservation of cultural heritage values.
It is common ground that there are no relevant matters outlined in Council's local planning policies for the purposes of para (d) of cl 5.8.1.
In consequence, the Tribunal, like the Council, is prepared to exercise discretion under cl 5.8.1 in relation to the exceedences of the external wall height standard at the second level of the proposal.
While Ms Butterworth contended that discretion should not be exercised under cl 5.8.1 of LPS 4 in relation to the third level of the proposal, as found earlier, the dormers are not external walls, and accordingly, the height of the vertical face of the dormers do not require the exercise of discretion under cl 5.8.1.
Is the visual impact of the third level acceptable?
Clause 10.2.1 of LPS 4 requires the Council, and the Tribunal on review, in considering an application for development approval, to have due regard to, and authorises the attaching of conditions relating to, a number of matters including:
(q)the ... height [of proposed development] ...;
(s)the way in which buildings relate to the street and adjoining lots, including their effects on landmarks, vistas, the landscape or the traditional streetscape ...;
…
(w)the relationship of the proposal 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 proposal.
…
Ms Butterworth expressed the opinion that the proposal in respect of the third level is not acceptable on a merit assessment having regard to these considerations. In particular, she expressed the opinion that the proposed development would present to Rennie Crescent as a three storey building in a locality which is generally single storey. Ms Butterworth emphasised the limited setback of the proposal and considered that the combination of the limited setback and the three storey presentation gives rise to an adverse visual impact.
Mr Paul Ellenbroek, a town planner who gave evidence on behalf of Mr Paris, disagreed with Ms Butterworth. Mr Ellenbroek considered that the visual impact of the proposal, and in particular of the third level, is acceptable, and made essentially five observations in support of that view. First, Mr Ellenbroek expressed the opinion that the dormer windows are appropriate in planning terms because they provide for, or increase the capacity for, passive surveillance of the street. Second, Mr Ellenbroek said that it is important to bear in mind that the site is zoned differently to the residential area, and that the expectations for the site and for the residential area are, therefore, different. Third, Mr Ellenbroek referred to the street trees which are in existence and which are currently immature. He expressed the view that when mature, these trees will significantly soften the visual impact of the development. Fourth, Mr Ellenbroek questioned the beneficial impact of removing the dormers. Finally, Mr Ellenbroek expressed the opinion that the dormers add visual interest to the building.
The Tribunal considers that the proposed third level would have a significant adverse visual impact on the streetscape and the existing and likely future development on land in the locality in consequence of its height, bulk and scale. Although the third level would be compromised substantially within the roof form, because of the zero or minimal setbacks of the building generally and the small setback of the gabled dormers in particular to Rennie Crescent, the size of the dormer windows, the cladding elements on the eastern and western elevations at the third level, and the substantial setback of the shop parapet wall to Rennie Crescent, the proposal would present from the public domain as an essentially three storey building.
A three storey presentation in this locality would be entirely discordant and incongruous in scale. While the built form in the locality is varied to an extent, it is exclusively single to two storeys and predominantly single storey in height, even in the commercial area and the area used for community purposes. Furthermore, a three storey presentation is not reasonably contemplated by the planning controls, notwithstanding the earlier finding that the vertical part of the dormer is not a wall and that the third level does not therefore exceed the maximum external wall height standard. A maximum wall height standard of 5.5 metres reasonably contemplates development that presents as essentially two storeys in height. In contrast, the proposed development presents as essentially three storeys in height.
It is the combination of the minimal or zero setback of the building generally, and the small setback of the gabled dormers in particular, the size of the dormer windows, the vertical elements on the eastern and western elevations at the third level, and the substantial setback of the shop parapet wall, that creates a three storey appearance and, consequently, an unacceptable visual impact. Significantly, when the site is viewed from the northwest at the intersection of Rennie Crescent and Paget Street, the proposed building would step notably forward from the parapet wall of the shop and would be notably higher than the parapet wall of the shop. The building would appear discordant and incongruous in scale.
It is correct, as Mr Ellenbroek observed, that the third level dormers would increase the opportunity for passive surveillance of the street. However, as Ms Butterworth pointed out, that capacity is available at the second level of the development from living areas and bedrooms, not simply from the bedrooms served by the dormers.
It is also true, as Mr Ellenbroek observed, that the site is zoned differently to the residential area. However, as found earlier, the external wall height standard applicable to the Neighbourhood Centre zoning contemplates essentially two storey development, not development presenting as essentially three storeys. Furthermore, existing development on the land zoned Neighbourhood Centre is one storey to two storeys in height and predominantly single storey. While there is capacity to develop the rear part of the strata lots adjoining the site to the south consistently with the Neighbourhood Centre zoning, importantly those properties do not have direct frontage to either Rennie Crescent or Paget Street and, in any case, should present as essentially two storeys in height. Therefore, having regard to the different zoning of the site from the residential area, the appearance of the proposal as essentially a three storey building is incompatible with both the residential area and the height, bulk and scale of existing and likely future buildings in the Neighbourhood Centre zoning.
Trees certainly, once they grow, will provide some visual screening of the building, particularly when viewed from the opposite side of Rennie Crescent. However, the trees will not significantly screen the building when viewed from the west near the intersection of Rennie Crescent and Paget Street. When viewed from this location, in the context of the single storey shop with parapet of approximately two storeys reducing to single storey, the proposed development would appear incongruous in scale.
The Tribunal considers that the elimination of the dormer windows will have a material impact in reducing the apparent height, bulk and scale of the proposed development. This is because the removal of the dormer windows and the loft areas would alter a building that has the visual appearance of a three storey development to a building that has the visual appearance of a two storey development. A two storey building is considerably more consistent with the streetscape and likely future development in the locality.
Finally, while it is correct that the dormer windows add some visual interest to the streetscape, the building, without the dormer windows, has visual interest in consequence of the awning and some variation in setbacks as well as other features of the proposal.
Conclusion
The Tribunal has come to the same view as the Council, that the third level of the proposal should be removed, but for a different reason. The Council was mistaken in its view that the third level of the proposal includes an external wall that exceeds the development standard in cl 7.1 of Sch 12 of the Scheme. The dormer, and in particular the vertical face of the dormer, is not a wall. Rather, it is part of the roof form.
However, the Tribunal considers that the visual impact of the third level of the proposal, and in particular the visual impact manifested in the gabled dormers, is detrimental and unacceptable, because it creates the visual impression of a three storey development in a locality comprising single to two storey development.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 19 August 2009 to grant conditional development approval for a mixed use development at No 36 (Lot 4) Paget St, Hilton is varied by deleting conditions 1 and 5 and by inserting the following three conditions:
(a)'1. The development shall be carried out in accordance with the approved plans dated 16 July 2009 as varied in accordance with condition 5'.
(b)'5. The submission of revised plans to the satisfaction of the Chief Executive Officer, City of Fremantle, showing the deletion of the dormers and the loft areas and the consequent amendment of the roof form to mitigate the bulk and scale of the development'.
(c)'6. The development shall be substantially commenced within two years of 27 October 2009'.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
0
0
2