PATRONI and CITY OF FREMANTLE
[2007] WASAT 63
•8 MARCH 2007
| JURISDICTION | : STATE ADMINISTRATIVE TRIBUNAL | ||
| STREAM |
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| ACT |
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| CITATION |
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| MEMBER |
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| HEARD | : 8 MARCH 2007 | ||
| DELIVERED | : 8 MARCH 2007 | ||
| FILE NO/S |
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| BETWEEN | : MICHAEL PATRONI |
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Four-level mixed use commercial/residential building - Levels 1, 2 and 3 nil setback to street frontage with three roofed balconies and two level fin wall projecting above public footpath - Level 4 setback 3.0 metres from street frontage - Whether height acceptable in relation to streetscape including heritage value of streetscape - Whether projecting balconies acceptable in relation to streetscape including heritage value of streetscape
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Legislation:
City of Fremantle Town Planning Scheme No 3, cl 28, cl 72, cl 77, cl 77(g),
cl 77(h), cl 77(i), Table II
Draft City of Fremantle Local Planning Scheme No 4, cl 12.12 1.2 and 1.3
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review dismissed
Development approval refused
Category: B
Representation:
Counsel:
| Applicant | : | Ms J Smithson (Acting as Agent) |
| Respondent | : | Mr G Bowering (Acting as Agent) |
Solicitors:
| Applicant | : | Cardno BSD (Town Planners) |
| Respondent | : | City of Fremantle |
Case(s) referred to in decision(s):
Nicholls and Western Australian Planning Commission [2005] WASAT 40
[2007] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 These proceedings involved an application for review of the refusal
of a development application for a four-storey mixed use commercial/residential building on the northern side of Norfolk Street, Fremantle, in the Fremantle West End Conservation Area.
2 Buildings in the street are predominantly one- to two-storeys in
height, with the exception of three- to four-storey buildings in the south-western part of the street. The proposed development would have a nil front setback up to Level 3 and a 3.075 metre setback to Level 4. Three covered balconies and a two-storey high fin wall would project by up to 2.0 metres into the public domain above the footpath.
The issues were:
• whether the height of the proposed development is acceptable in relation to streetscape, including the heritage values of the streetscape; and • whether the projecting balconies are acceptable in relation to streetscape, including the heritage values of the streetscape.
4 Following the hearing, the Tribunal gave an oral decision in which it
dismissed the application for review and affirmed the decision to refuse
development approval.5 The Tribunal found that the proposed building would be distinctly
higher than surrounding built form. The Tribunal determined that the visual domination of the proposed building over existing built form in the streetscape involves an adverse impact on the streetscape, which is unacceptable. Moreover, a three- to four-storey building juxtaposed against one- to two-storey buildings involves a discordance in scale which is unacceptable.
6 The Tribunal found that the historic character of the relevant part of
the Conservation Area comprises a mix of modest commercial and residential buildings of mostly one to two storeys. The Tribunal determined that the dominant three- to four-storey scale of the proposed development would adversely affect the heritage quality of the street in terms of the predominant scale of built form.
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7 Although projecting balconies exist in other parts of the
Conservation Area, the Tribunal determined that the form of the balconies proposed in this case has no historical context and is inappropriate because of the need to prune a Norfolk Island pine tree that is one of a heritage-listed group.
The Tribunal's reasons, taken from the transcript and edited in minor aspects to aid clarity, are as follows.
Introduction
These proceedings involve an application brought by Mr Michael Patroni pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision of the City of Fremantle (City or Council) to refuse approval for a four-storey mixed-use commercial/residential development at No 20 Norfolk Street, Fremantle (site). Mr Patroni is the designing architect of the proposed development.
Site and locality
10 The site has a regular rectangular shape with a street frontage and
width of 15.17 metres, a length of 37.86/37.90 metres and an area of 574 square metres. The site is located in a central position, but within the eastern half, on the northern side of Norfolk Street, between the intersection of Norfolk Lane to the east and Marine Terrace to the west. The site currently accommodates a single-storey factory/workshop and a single-storey shop/showroom built to the rear and side boundaries.
11 Norfolk Street is a short and confined street running between
Marine Terrace to the west and South Terrace to the east. Buildings in the street are predominantly one- to two-storeys in height with the exception of the buildings in the south-western part, which are three- to four-storeys in height.
12 On the northern side of the street, the site and the four properties to
the east contain single-storey buildings, and the properties to the west contain generally two-storey buildings, with two single-storey buildings. The property immediately to the west of the site at No 18 Norfolk Street contains a two-storey commercial building, which is higher than a two-storey residential building, and which presents to the site with an 8.3 metre high boundary wall.
13 Over half of the properties on the northern side of Norfolk Street
between Norfolk Lane and Marine Terrace - six out of 11 properties -
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are listed on the Council's Municipal Heritage Inventory (MHI) on
account of the building on the property. These comprise:
• No 26 - 28 Norfolk Street, which is an elevated single-storey house categorised as Level 1A under the MHI, meaning that it is of State heritage significance, which is also listed on the State Heritage Register; • No 24 and No 22 Norfolk Street adjoining the site to the east, each of which are single-storey houses categorised as level 3 under the MHI, meaning that they are important and should be preserved if possible; • No 16, which is a two-storey building, categorised as level 3 under the MHI; and • No 14 and No 6 Norfolk Street, each of which are single-storey buildings categorised as level 2 under the MHI, meaning that they are to be retained and conserved for their local heritage value.
14 In addition, the property at the north-eastern corner of Norfolk Street,
which principally addresses South Terrace and is bounded by Norfolk Street, South Terrace, Essex Street and Norfolk Lane, contains a former school building which is categorised as Level 1A under the MHI and listed on the State Heritage Register. The streetfront limestone wall of this property on Norfolk Street is also listed on the MHI.
15 The north-western part of Norfolk Street features mature
Norfolk Island pines planted in about 1908, which are a significant and dominant element in the streetscape. The pines are listed on the MHI, both because of their historic value and for the community action to save them in the 1990s. One of the pines is located centrally in front of the site. The southern side of the street has plantings of peppermint trees which are in poor to very poor condition.
Planning framework
16 The site is zoned "Central Business" under the City of Fremantle Town Planning Scheme No 3 (TPS 3 or Scheme). The uses proposed in the development application, which fall within the use classes "residence-private" and "retail-comparison" under the Scheme, are not permitted unless consent is granted by the Council: see cl 28.
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17 Clause 72 of the Scheme provides that, in the Central Business zone,
the minimum height of buildings shall be two storeys and the maximum height of buildings shall be four storeys unless otherwise determined by the Council.
18 Table II of TPS 3 prescribes a maximum plot ratio of 2.0 and permits
100% site coverage with nil front, side and rear setbacks and nil
landscaping.19 Clause 77 of TPS 3 provides that, in determining a development
application, the Council shall have regard to and may attach conditions
relating to matters including:
"(g) the form, layout, appearance and materials of
buildings;(h) the height, position, form and materials of fences and walls; (i) the way in which buildings relate to the street and adjoining lots, including their effects on landmarks, vistas and landscape or the traditional street-scape, and on the privacy, daylight and sunlight available to private open space and buildings; [and] ... (s) the heritage significance of the place and its context."
20 Draft City of Fremantle Local Planning Scheme No 4 (draft LPS 4) is proposed to replace TPS 3. Draft LPS 4 has been approved by the Minister for Planning and Infrastructure and was apparently due to be gazetted last Friday, 2 March 2007. Although it appears that this did not occur for technical reasons, it is anticipated that it will occur shortly. The site is located within Sub-area 1 West End of Local Planning Area 1 City Centre under draft LPS 4, where "building height shall be limited to a maximum height of three storeys" with a maximum external wall height of 11 metres (cl 12.12 1.3). Draft LPS 4 goes on to state as follows:
"Council may consent to an additional storey subject to:
(a)
the upper level being sufficiently set back from the street so as not to be visible from the streets adjoining the subject site,
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(b) maximum external wall height of 14 metres, and (c) compliance with clause [12.12] 1.2 above."
Clause 1.2 referred to in this quotation states as follows:
"In granting consent to the maximum height prescribed, Council
shall be satisfied in regard to the following:
(a) that the proposal is consistent with predominant height patterns of the adjoining properties in the locality generally, (b) the proposal would not be detrimental to the amenity of adjoining properties or the locality, (c) the proposal would be consistent if applicable with conservation objectives for the site and locality generally, and (d) any other relevant matter outlined in Council's local planning policies. Council may impose a lesser height in the event that the proposal does not satisfy any of the above requirements."
22 It is common ground, and obviously the case, that these height
provisions in draft LPS 4 are seriously-entertained and therefore a relevant matter for consideration in this review. In Nicholls and Western Australian Planning Commission [2005] WASAT 40 the Tribunal identified, at [59], four principal matters for consideration in determining what weight should appropriately be given to a draft planning instrument. The four considerations are:
(1) the degree to which the draft addresses the specific
application;(2) the degree to which the draft is based on sound town
planning principles;(3) the degree to which the draft could be regarded as certain;
and(4) the degree to which its ultimate approval could be
regarded as imminent.
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23 In this case, the height provisions of draft LPS 4 address the specific
application. The draft is based on sound town planning principles of protecting streetscape. The making of the draft, including the height provisions, is highly certain and imminent. The height provisions should therefore be given considerable weight in this review.
24 The site is located at the south-eastern edge of the Fremantle
West End Conservation Area (Conservation Area), the southern boundary of which is the southern edge of Norfolk Street, and is subject to the Fremantle West End Conservation Area Policy DGF 14 (Conservation Area Policy). In particular, the site is located within Zone 3 - Former Warehousing/Residential under the Conservation Area Policy. However, it is to be noted that cl 4.3 of the Conservation Area Policy states that Zone 3's character extends south to South Street, which is seven streets to the south of the southern edge of the Conservation Area. The area between Suffolk Street, which is the street immediately to the south of Norfolk Street, and South Street comprises principally one- to two-storey buildings.
25 The Fremantle West End Conservation Area is described by
Ms Nerida Moredoundt, a heritage architect and conservation planner who gave evidence on behalf of the City, as "an historic precinct of exceptional heritage significance" with one of the highest concentrations of heritage buildings listed on the National Estate in Australia.
Proposed development
26 The proposed development occupies the whole site and comprises
four levels. The ground level incorporates a 34 square metre shop in the eastern part of the frontage, a driveway with an automated gate leading to a 12 bay car park and 12 storage units, and an entry foyer at the western end of the frontage. Levels 2, 3 and 4 comprise 12 two-bedroom residential units with balconies.
27 The façade of Levels 1, 2 and 3 has a nil setback to the street
frontage and contains two balconies at Level 2 and one balcony at Level 3, each of which are cantilevered and project by up to 2.0 metres into the public domain above the footpath. The western balcony on Level 2 has a solid balustrade on the western side and on the streetfront elevation, with a 2.0 metre wide two-storey high fin wall projecting into the public domain to its east to provide privacy from other projecting balconies, and a 2.0 metre wide roof above Level 3, also projecting into the public domain. The eastern projecting balcony on Level 2, a corresponding balcony on Level 3 and a roof element above have
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dimensions of approximately 6.0 metres by 2.0 metres, and these
balconies are proposed to have open metal balustrading.
The façade of Level 4 is set back 3.075 metres from the principal façade of the building behind a part masonry, part open metal balustrade.
The height of the building to Level 3 is 9.5 metres, and the overall height is 12.5 metres.
Attachment A is a copy of the plans of the proposed development.
Council's decision
31 The Council advertised the development application and received
12 submissions, three in support, including one identifying the site as the submitter's address, and nine in opposition to the proposal. The development application was the subject of a comprehensive report by Mr Dominic Mitchell, Council's senior planning officer, to the Council meeting on 4 October 2006, in which, on balance, Mr Mitchell recommended the refusal of the application "due to its impact on the streetscape which has been identified by the Council as being of significance in this part of the City".
The Council accepted Mr Mitchell's recommendation and refused development approval for the following three reasons:
"(1) The proposed development is contrary to clause 56 and
clause 77(g), (h) and (i) of Town Planning Scheme No 3.(2) The height of the proposed development is not
sympathetic to the established streetscape of Norfolk Street.
(3)
The proposed balconies overhanging the Norfolk Street road reserve are not sympathetic to the established streetscape of Norfolk Street."
The issues
The following two issues arise for determination in this review:
1.
Whether the height of the proposed development is acceptable in relation to streetscape, including the heritage values of the streetscape.
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2. Whether the proposed projecting balconies are acceptable in relation to streetscape, including the heritage values of the streetscape.
The Tribunal will address each issue in turn.
Whether the height of the development is acceptable in relation to streetscape
35 As noted earlier, Norfolk Street is characterised by one- to
two-storey built form with the exception of three- to four-storey built form in the south-western part. As Mr Mitchell noted in his report to Council, the proposed building would be taller than the existing buildings in its immediate vicinity. Although the adjoining building at No 18 is a tall two-storey commercial building, its height to the street is mitigated by a steeply pitched roof element and by a modest setback. The overall height of the building at No 18 is approximately 900 millimetres less than the height to Level 3 of the proposed building, and approximately 4.3 metres less than the overall height of the proposed building. The other buildings in Norfolk Street are generally lower than No 18, other than the three- to four-storey buildings in the south-western part of the street.
36 Although it is common ground that a positive aspect of the proposal
is that it would block the eastern blank brick wall of No 18 Norfolk Street, which is a relatively massive and intrusive element in the streetscape, the proposed building would extend considerably higher than that which is necessary to achieve that worthwhile purpose. It is Ms Moredoundt's and Mr Mitchell's evidence, and plainly the case, that the four-storey height of the development would be apparent from the south-east and from the west when viewed within the streetscape of the northern side of Norfolk Street. Ms Moredoundt gave evidence, which the Tribunal accepts, that the proposal would be "distinctly higher" than the surrounding built form and would be "a focal point in terms of visual impact".
37 While, as Ms Moredoundt accepted, the proposed development is a
good quality design in its own right, she correctly characterised the height of the building as having a dominating effect in terms of streetscape. The visual domination of the proposed building over existing built form in the streetscape involves an adverse impact on the streetscape, which is unacceptable.
38 Moreover, the proposed development would present directly as a
plainly three-story building, with part of the fourth storey also apparent from the footpath on the opposite side of the street, and obliquely,
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as a four-storey building within the streetscape characterised by one- to two-storey buildings. As Ms Moredoundt explained, oblique views are important in relation to streetscape. The juxtaposition of a three- to four-storey building against one- to two-storey buildings involves a discordance in scale which is unacceptable.
39 Ms Jenny Smithson, a consultant town planner who both represented
and gave evidence on behalf of Mr Patroni, presented the following
argument:"If the height at up to four storeys is not consistent with the amenity of the locality, not conducive to the heritage character of the area and inconsistent with relevant policy statements, I query why the City's Scheme requires height in the same locality to be a minimum of two storeys and allows up to four storeys. The Scheme in effect encourages development up to four storeys in the area by virtue of clause 72. A policy cannot override a planning scheme provision."
40 However, the Scheme does not "encourage" development of up to
four storeys. Rather, it generally precludes development of less than two storeys and generally permits development of up to four storeys subject to merit. As Mr Mitchell correctly observed, four storeys is not as of right. In particular, cl 77(g), cl 77(h) and cl 77(i) of TPS 3, which require the Council and the Tribunal on review to have regard to the form of buildings, the height, position, form and materials of walls and the way in which buildings relate to the street, inform an assessment as to whether a two-storey, a three-storey or a four-storey building is appropriate in a particular streetscape context. In the context of the established streetscape of Norfolk Street and having regard in particular to the predominant height of buildings in the street and the exclusive height of buildings on the northern side of that street, a building directly presenting to the street as three storeys and obliquely as four storeys would be of an excessive scale.
41 In this established streetscape context, an infill building should
present directly to the street as two storeys, with a third storey recessed in the order of 4.0 metres so as to maintain a generally two-storey presentation consistently with the predominant scale of buildings in the streetscape.
42 Ms Smithson is correct in her observation that a policy cannot
override a planning scheme provision. However, a properly developed
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and adopted policy can guide the exercise of discretion as to whether a four-storey building should be allowed in a particular streetscape context. That having been said, this case does not turn on a policy which guides the exercise of discretion. Rather, the case turns on giving proper consideration to cl 77(g), cl 77(h) and cl 77(i) of TPS 3.
43 Although Mr Bowering, who represented the Council, opened
Council's case on the basis that policy relevantly guides the exercise of discretion in this case, the Tribunal has found very little assistance in relation to building height in any of the Council's policies identified by the City in this review. In particular, whereas the Conservation Area Policy provides in cl 4.3.2 that, "[i]n considering residential development proposals the Council will ensure that those developments conform in general to the existing traditional pattern, and in particular ... the scale not to exceed two storeys", it is common ground that this provision does not apply to the proposed development, which is a mixed use rather than (purely) "residential development". This policy provision is of some relevance in indicating the likely height of purely residential development which may occur over time on the northern side of Norfolk Street and therefore the scale of future residential development in the locality. However, it is of no assistance to guide a discretion as to height in relation to the site itself.
44 The Council may wish to review the Conservation Area Policy to
provide explicit guidance as to how to exercise discretion as to height in
relation to buildings having a non-residential component.45 Ms Smithson also noted that the adjoining single-storey building at
No 22 Norfolk Street, which is identified as a Level 3 place on the City's MHI and is currently used as a restaurant, has been considerably altered internally and externally. Mr Peter Randles, the owner of the site, gave evidence that, having been to the restaurant at No 22 quite a few times, only the shell of the building remains internally, and there has been considerable alteration externally. He expressed the opinion that it would be too costly to restore the interior of the building as an original cottage, and that the owner would have no economic alternative but to redevelop it.
46 However, Mr Randles conceded that he does not have heritage
qualifications. He does not appear to have undertaken a rigorous
assessment of the cost of restoration.
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47 Mr Philip Griffiths, a heritage architect who gave evidence on behalf
of Mr Patroni, considers that No 22 is a candidate for redevelopment and that, given that it is only identified as Level 3 – the lowest classification level - on the MHI, it would be "pretty hard" to resist an application for redevelopment. He said that redevelopment of No 22 would mitigate the impact of the height of the proposed building by allowing transition in built form between the single-storey heritage buildings to the east and the proposed building on the site.
48 However, Ms Moredoundt considers that it is not inevitable that the
building at No 22 would be replaced. She said that while replacement might be a reasonable assumption in other local government areas, and in fact in other parts of the City's local government area, it is different in the West End Conservation Area. This is because, although Level 3 buildings have a lesser individual value than Level 1 or Level 2 buildings, they nevertheless make an important contribution to the overall heritage values.
49 The Tribunal does not consider that the demolition of No 22 is
inevitable. Its contribution in terms of scale and form to the streetscape and to the Conservation Area generally can be maintained while allowing adaptive re-use internally. As noted earlier, Level 3 means that the place is of importance and should be preserved if possible. In any case, even if the building at No 22 were demolished and replaced, the replacement building would need to respond to the predominant scale of buildings in the street. The proposed development would be excessively scaled if juxtaposed against such a building.
50 Ms Smithson contends that the streetscape has been significantly
altered in Norfolk Street, with the result that the proposal is acceptable. However, seven of the 12 properties which front the northern side of the street appear to be original buildings, as they are listed on the MHI. Furthermore, much of the redevelopment which has occurred, particularly in the south-eastern and south-central part of the street, has taken place within a two-storey building envelope. While the development in the south-western part of the street is three to four storeys and there are other developments of three to four storeys in Essex Street and Collie Street to the north, these other developments, as Ms Moredoundt observed, are over-scaled when assessed against the predominant scale of built form.
51 Finally, in relation to streetscape, Ms Smithson considers that the
pine trees will "obscure much of the proposed development, particularly when viewed from both sides of the street and from both of its ends".
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Certainly the pine trees will substantially obscure the proposed development when viewed from the south-east corner of the street. The canopy of the pines is less dense when the site is viewed from the south-western corner of the street, and the three- to four-storey height of the building would be apparent through the canopy from that position.
52 Furthermore, when one approaches the site as a pedestrian on the
northern side of the street, and when one views the site from the central part of the southern side of the street, the full three to four storeys would be apparent, juxtaposed against one- to two-storey development along the northern side.
53 Furthermore, the evidence suggests that the Norfolk Island pines
have a lifespan of approximately 150 years. Having been planted almost 100 years ago, they will need to be replaced over time. The heritage experts agree that current replacement practice is to plant similar trees near existing ones in sufficient time to enable the new tree to grow before the original tree is removed. In this case, given the location of the proposed driveway within the development and the location of the pine tree in front of the site, a replacement tree is likely to be located adjacent to the eastern or western end of the development, rather than in a relatively central position in front of the site, as is the case at present.
54 It follows that the height of the proposed development is not
acceptable in terms of the existing streetscape when assessed under
TPS 3. The development application warrants refusal for this reason.55 The height of the proposed development is also not acceptable when
regard is had to draft LPS 4. As noted earlier, Sub-area 1 West End, which includes the site, is subject to a maximum height of three storeys under draft LPS 4. Council may only consent to an additional storey if, among other things, the upper level is set back from the street so as not to be visible from the street. Part of the fourth level of the proposal would be visible from the street when the site is viewed from the opposite footpath, and the fourth level would be visible at oblique angles within the streetscape. The height of the development would therefore not be capable of approval under LPS 4.
56 Although the operative town planning scheme remains TPS 3, it is
appropriate to give considerable weight to LPS 4, as it is both certain and imminent. The non-compliance with LPS 4 is a further reason warranting refusal of the application.
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57 Finally, in relation to heritage values of the streetscape, the heritage
experts agree that Norfolk Street has heritage value, but does not have the visual or historic coherence that characterises much of the West End Conservation Area. Mr Griffiths considers that the key assets of the street reside in the axis of the street and cadastral pattern, its long vistas, the Norfolk Island pines and a very small number of important buildings. He considers that as the proposed building would appear as a three-storey development in the streetscape, and as the pines would remain the dominant visual element and significantly reduce the visual impact of the development, "effectively the new development will fit in with the overall scale of the street".
Ms Moredoundt gave the following evidence:
"While the area has undergone changes over the years, the historic fabric is still very much in evidence in the area from Collie to South Streets. The historic character comprises a mix of modest commercial and residential buildings of mostly one to two storeys, with some more substantial two-storey buildings such as the former school on the corner of Essex and South Terrace, the former mill buildings in Essex Street, and the Norfolk Hotel on the corner of Norfolk Street and South Terrace.
Most of the historic residences are characterised by gently scaled vernacular forms comprising steeply pitched roofs, simple facades and front verandahs."
Ms Moredoundt continued as follows:
"The north-eastern end of Essex and Norfolk Streets, as well as South Terrace, continues to feature many Victorian and Federation-era buildings which either retain their original use or have been adapted for re-use."
60 As noted earlier, the buildings on the northern side of Norfolk Street
are exclusively one to two storeys in height, and the buildings from Suffolk Street to South Street are also predominantly one to two storeys. Although the area from Suffolk Street to South Street is not included within Zone 3 of the Conservation Area, or indeed within the Conservation Area at all, the Conservation Area Policy states that the area from Suffolk Street to South Street has the same character as Zone 3 of the Conservation Area.
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61 Although there are some examples of three- to four-storey buildings
in Zone 3, particularly in the vicinity of Marine Terrace, the historic character of modest commercial and residential buildings identified by Ms Moredoundt is clearly apparent in those streets. Ms Moredoundt explained that this historic character is different to the predominant scale in other zones within the Conservation Area where four-storey buildings are characteristic. Ms Moredoundt also said that the large hipped roof forms which are characteristic of original single-storey development in Zone 3 allow two-storey infill development of generally compatible scale to original single-storey buildings. However, as she also observed, the height of the proposed development means that it would be very noticeable. The dominant three- to four-storey scale of the proposed development would adversely affect the heritage quality of the street in terms of the predominant scale of built form.
62 Contrary to Mr Griffiths' evidence, the development would not
simply appear as a three-storey development, and the pines would not significantly reduce its prominence when viewed from many locations in the street. However, even a building that would present directly as a full three storeys would not be sympathetic to the historic character of modest commercial and residential buildings of mostly one to two storeys.
The proposed development is not acceptable in relation to streetscape in terms of its height.
Whether the proposed projecting balconies are acceptable in relation to streetscape
64 Mr Griffiths considers that projecting verandahs and balconies are
characteristic of the West End Conservation Area and notes that there are examples in South Terrace. Mr Patroni said that he has designed buildings with projecting balconies in Fremantle and that "it is an unspoken Council policy that Council supports the reinstatement of balconies on footpaths as there were so many that had overhanging balconies".
65 Ms Moredoundt agrees that there are historical and replaced
examples of projecting balconies, but does not accept that they are characteristic of the West End in general. She also notes that there are no examples in Norfolk Street. There are projecting verandahs at the north-western and south-western corners of the street, but there are no projecting balconies in Norfolk Street with the exception of some minor Juliet balconies projecting in the south-western part of the street.
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66 Ms Moredoundt considers that the balconies proposed within the
development are not consistent with the character of the historic built form in the locality and will impact adversely on the distinct spatial character created by the juxtaposition of strong vertical Norfolk Island pines and the retained historic fabric in the street.
67 From a planning perspective, Ms Smithson considers that the
balconies are a unique architectural feature of the development which would provide additional architectural interest and increased surveillance. In contrast, Mr Mitchell considers that the balconies are atypical in Norfolk Street and would constitute a significant intrusion in the streetscape.
68 Except where it serves to reinforce historic or other character or
promotes some other public purpose, it is generally inappropriate for commercial development to utilise the public domain by projecting built form above it. From a pure town planning perspective, the Tribunal agrees with Mr Mitchell that the balconies are inappropriate in the streetscape. They would be a significant and uncharacteristic intrusion into the streetscape of Norfolk Street. The eastern side of the building would contain three banks of 6.0 metre long by 2.0 metre wide projecting slabs, including the roof of the balcony above Level 3. The western side would contain a solid balustrade, a two-storey high, 2.0 metre deep solid fin wall and a solid roof. While this would be an interesting architectural feature, it would be an inappropriate intrusion into the streetscape given that it would sit within the public domain. The amenity and passive surveillance functions of the projecting balconies could be achieved in much the same way if they were to project within the development site itself.
69 The balconies are also inappropriate in this location from a heritage
perspective. While there are examples in other parts of the Conservation Area, there are no nearby examples. The proposal is not a reinstatement where, as Mr Patroni indicated, the Council has generally supported projecting balconies. Furthermore, the architectural form proposed is quite different to historic examples in other locations. In particular, the significant vertical fin wall has no historical context and balconies in the locality are generally restricted to one rather than two levels.
70 Finally, as the edge of the larger balconies would be only 1.8 metres
from the centre of the trunk of the Norfolk Island pine, it is likely that there would have to be pruning, and thereafter maintenance, of that tree in order to accommodate the third level balcony and its roof. Given that the
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pines are listed on the MHI, it would be inappropriate for this to occur. It follows that the projecting balconies as presently proposed are inappropriate.
Conclusion
71 The Tribunal has determined that the height of the proposed
development is unacceptable in relation to streetscape. The Tribunal has also determined that the projecting balconies are unacceptable in relation to streetscape.
72 It follows that the application for review should be dismissed and the
| decision of the Council to refuse development approval should be affirmed. |
| Orders |
The Tribunal makes the following orders:
1. The application for review is dismissed. 2.
The decision of the respondent to refuse development approval for 12 multiple dwellings and a retail shop at No 20 Norfolk Street is affirmed.
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Attachment A
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I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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