PAZ and CITY OF STIRLING - [2014] WASAT 157

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PAZ and CITY OF STIRLING [2014] WASAT 157

MEMBER: MS R MOORE (MEMBER)

HEARD: 12 AUGUST 2014

DELIVERED : 20 NOVEMBER 2014

FILE NO/S: DR 119 of 2014

BETWEEN: ANNA PAZ
CZESLAW PAZ
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Heritage Protection Area of Mt Lawley - Character Retention Guidelines Mt Lawley, Menora and Inglewood - Previous decision of Tribunal allowed demolition of original Federation Bungalow on site - Development application for new grouped dwelling - Whether proposed dwelling will adversely affect the heritage significance of the area - Front setbacks - Building height - Architectural form including scale, style, materials and finishes

Legislation:

City of Stirling Local Planning Scheme No 3, cl 2.3, cl 4.2.12, cl 5.1, cl 5.2, cl 6.6.1, cl 6.6.3, cl 7.1.1, cl 7.2, cl 7.3.2, cl 10.2, Pt 6 Pt 7
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241, s 252(1), Pt 3
Residential Design Codes, cl 2.4, cl 2.5, Pt 2

Result:

Application for review dismissed
Development approval refused

Summary of Tribunal's decision:

This matter involved an application for review of the City of Stirling's refusal of a development application for a two storey grouped dwelling at No 86 Third Avenue, Mount Lawley. The proposed grouped dwelling was to be built on the front lot of a site located within the Mount Lawley Heritage Protection Area.
There have been previous Tribunal proceedings involving this site: see Paz and City of Stirling [2011] WASAT 157. Those proceedings were brought by the same applicants and were for a review of the City's decision to refuse development approval for the demolition of the original dwelling on the front portion of the site. The dwelling the subject of those proceedings was a Federation Bungalow constructed in 1908 with a 20 metre front setback. The Tribunal allowed the review and granted approval to demolish the dwelling.
In the current proceedings, the City was primarily concerned that the front setbacks to the proposed dwelling were to be less than the existing front setbacks to the traditional dwellings on either side of the subject site. The City was also concerned that the building height and architectural design of the proposed dwelling would combine to have an adverse effect on the heritage significance of the neighbouring properties, the streetscape and the Heritage Protection Area as a whole.
The applicants argued that it was appropriate in these particular circumstances to have a reduced setback to the primary street, and that the building height and architectural design satisfied both the objectives of the City's Local Planning Policy 3.1 - Character Retention Guidelines Mt Lawley, Menora and Inglewood and the relevant elements of the State Planning Policy 3.1 - Residential Design Codes.
As the experts agreed that the planning framework reflected community expectations that appropriately designed two storey dwellings should be allowed, and no evidence was put forward that the proposal would not maintain adequate access to direct sunlight or daylight to adjoining properties, the Tribunal found that in relation to building height alone, the proposed dwelling would be consistent with the desired scale of the locality and would not overly impact on the streetscape or the neighbouring properties if it was set back appropriately.
In regard to street setbacks, the Tribunal found that a dwelling that satisfied the reasonable expectations of contemporary living standards could be designed on the subject site with a setback of 10.5 metres, maintaining the setbacks of adjoining properties, despite the reduced site area and depth of the subdivided lot.
The Tribunal also found that the proposed front setback of 7 metres, in lieu of the required 10.5 metres, combined with the architectural design of the dwelling, would not be in keeping with the heritage character of the area, or respect the scale and proportions of surrounding buildings. The Tribunal determined that the proposed dwelling would have an adverse effect on the heritage significance of the neighbouring properties, the streetscape, and the Heritage Protection Area as a whole.
The application for review was therefore dismissed and the decision of the City to refuse development approval was affirmed.

Category: B

Representation:

Counsel:

Applicants: Mr D Paz (Acting as Agent)
Respondent: Mr N John (Acting as Agent)

Solicitors:

Applicants: N/A
Respondent: N/A

Case(s) referred to in decision(s):

Paz and City of Stirling [2011] WASAT 157

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application brought by Mrs Anna Paz and Mr Czeslaw Paz (applicants), pursuant to s 252(1) of the Planning and Development Act2005 (WA) (PD Act), for review of the decision of the City of Stirling (City or respondent) made on 14 March 2104 to refuse development approval for a two storey grouped dwelling at No 86 (Lot 174) Third Avenue, Mount Lawley (site or subject site).
There have been previous Tribunal proceedings involving this site: see Paz and City of Stirling [2011] WASAT 157 (Paz 2011). The proceedings in Paz 2011 were brought by the same applicants and were for a review of the decision of the City to refuse development approval for the demolition of an existing dwelling on the front portion of the site. The dwelling the subject of those proceedings was a Federation bungalow constructed in 1908 with a 20 metre setback from the front boundary. The Tribunal allowed the review and granted approval to demolish the dwelling.

Site and locality

The site is rectangular in shape with 15.23 metre front and rear boundaries, 57.84 metre side boundaries and a total area of approximately 880m². The Western Australian Planning Commission (WAPC) granted conditional approval for subdivision of the site into two survey strata lots on 14 May 2012.
The proposed grouped dwelling the subject of this review is to be built on the approved strata lot fronting Third Avenue. This lot is approximately 466m² in area and has the following boundary dimensions:
•13.73 metre frontage to Third Avenue (southwestern boundary);
•34.24 metre side boundary (northwest);
•10.70 metre rear boundary (northeast);
•4.11 metre truncation; and
•31.46 metre side boundary (southeast).
The rear lot is approximately 415m² in area and contains an existing two storey brick dwelling constructed in 2001, with vehicular access from the rear right of way and pedestrian access from Third Avenue.
At [14] ‑ [16] of Paz 2011, the Tribunal usefully described the neighbouring properties and the relevant section of Third Avenue as follows:
14The dwelling to the southeast is an example of the more decorative Federation Queen Anne style. Both this residence and the dwelling to the northwest are set back between 10 and 11 metres from the front boundary, although the dwelling to the northwest has a carport within the front setback area on the northwestern side of the property.
15In this locality the northeastern side of Third Avenue comprises residential dwellings while the opposite side of the street contains residential dwellings and the site of the Mount Lawley Primary School.
16This section of Third Avenue comprises a mix of generally single storey dwellings, the majority of which represent Federation and interwar dwellings displaying a variety of characteristics of those architectural styles. A number of these dwellings have had additional dwellings constructed to the rear. A number of original houses on both sides of the street have been demolished and replaced with new dwellings. These replacement dwellings are generally two storey dwellings.
The Tribunal had the benefit of a view of the site and Third Avenue, between Clifton Crescent and Wenberi Lane, in the company of the parties on the day of the hearing.

The development

As stated above, the proposed development is the construction of a two storey grouped dwelling on the front strata lot of the site. The new dwelling is to be constructed in face brickwork, with a hipped and gabled roof. The design includes rendered bands around the windows and red coloured roof sheeting with similar design details to the existing rear dwelling.
A double width crossover from Third Avenue is to provide vehicular access to an integrated double garage which has a nil side setback to the northwestern boundary. The remainder of the ground floor of the dwelling contains a bedroom, ensuite, powder room, laundry, kitchen, family room and living room which opens on to an alfresco area to the rear. The upper floor of the dwelling has three bedrooms, a study, a theatre, three ensuites and a 5 metre by 3.5 metre (approximately) internal void over the family area.
The street setback of the ground floor is 7 metres to the ground floor bedroom and 7.96 metres to the double garage. The ground floor bedroom has a setback of 2.04 metres to the southeastern side boundary (0.54 metres to the fence of the pedestrian access to the rear dwelling). The upper floor is set back 10 metres from the street to the theatre and 12.28 metres to bedroom 2. Both the theatre and bedroom 2 open onto a 6.37m² balcony.
The ground floor of the dwelling is 194.58m² in area, plus 41.59m² for the garage and store, and the upper floor is 185.28m² in area. The total two storey built floor area of the proposed dwelling is 421.45m² (including the integrated garage and store).

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential with a density coding of R30 under the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme). The subject site is also located within a Heritage Protection Area Special Control Area as shown on the Scheme maps.
The objectives of the Residential zone are provided in cl 4.2.12 of LPS 3 and are:
a)To provide for residential development at a range of densities with a variety of housing type and size, to meet the current and future needs of the community.
b)To provide for a range of nonresidential uses, which are compatible with and complementary to residential development.
Clause 5.1 of LPS 3 requires any development of land to comply with the provisions of the Scheme and to have due regard to any of the City's local planning policies. Clause 5.2 of LPS 3 requires the development of land for residential purposes to conform to the Residential Design Codes unless otherwise provided for in the Scheme.
Clause 2.3 of LPS 3 states that a local planning policy is not part of the Scheme and does not bind the decision‑maker in respect of any application for planning approval, but the decisionmaker, in this case the Tribunal, is to have due regard to the provisions of the policy and the objectives the policy is designed to achieve.
Part 6 of LPS 3 provides for Special Control Areas, and includes the category of Heritage Protection Area. In respect to Special Control Areas, the provisions applying to a Special Control Area apply in addition to any underlying zone and any general provisions of the Scheme.
The objectives of the Heritage Protection Area Special Control Area are set out in cl 6.6.1 of LPS 3 as follows:
a)To ensure the conservation and retention of buildings within the Heritage Protection Area Special Control Area dating from the early 1900s to the 1950s where the architectural style of the building is generally intact;
b)To ensure the retention of existing buildings referred to in (a) above to maintain the existing character of the streetscape;
c)To ensure that new buildings (where permitted), alterations, additions to existing buildings, carports, garages and front fences are in keeping with the heritage character of the area, respect the scale and proportions of surrounding buildings, and are designed to fit into the existing streetscape;
d)To maintain and improve existing street trees, grass verges and front gardens; and
e)To retain mature trees wherever possible.
Clause 6.6.3 of LPS 3 states that all development shall conform with these objectives and the local planning policy adopted for the Heritage Protection Area Special Control Area. In accordance with cl 7.3.2 of LPS 3, the City has adopted Local Planning Policy 3.1 - Character Retention Guidelines Mt Lawley, Menora and Inglewood (Character Retention Guidelines) for the purpose of ensuring that the heritage character of Mt Lawley, Menora and Inglewood is retained and protected, and is reflected in any new development.
Part 7 of LPS 3 provides for the establishment of a heritage list to identify those places within the Scheme area which are of cultural significance and worthy of conservation under the Scheme. A heritage list has been prepared pursuant to cl 7.1.1 of the Scheme and the subject site is not on this list, nor is it on the City's Municipal Heritage Inventory (MHI).
Clause 10.2 of LPS 3 sets out the matters to which the City is to have due regard in considering an application for planning approval, and relevantly includes the following:
a)the aims and provisions of the Scheme and the objectives of the relevant zone and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
c)any approved statement of planning policy of the Commission;
…
e)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
f)any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.3.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme;
…
h)the conservation of any place that has been entered in the Register within the meaning of the Heritage of Western Australia Act 1990, or which is included in the Heritage List under Clause 7.1 and 7.2, and the effect of the proposal on the character or appearance of a heritage area and the following:
i.the effect of the proposed development on the heritage significance of the place;
ii.the measures proposed to conserve the heritage place;
iii.if the proposal involves demolition, whether the heritage place is reasonably capable of conservation, and whether or not the place is structurally sound;
iv.whether the character, design and aesthetics of any proposed replacement building and its relationships to character of adjacent buildings are appropriate.
…
n)the preservation of the amenity of the locality;
o)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[.]

State planning policies

Under s 241 of the PD Act, the Tribunal is required to have due regard to any State planning policy which may affect the subject matter of a review application. Two State planning policies relevant to this review are:
•State Planning Policy 3.5 ‑ Historic Heritage Conservation (SPP 3.5); and
•State Planning Policy 3.1 – Residential Design Codes (Codes).
Both of these are approved State planning policies prepared under Pt 3 of the PD Act.

SPP 3.5

The objectives of SPP 3.5 are:
•To conserve places and areas of historic heritage significance.
•To ensure that development does not adversely affect the significance of heritage places and areas.
•To ensure that heritage significance at both the State and local levels is given due weight in planning decisionmaking.
•To provide improved certainty to landowners and the community about the planning processes for heritage identification, conservation and protection.
SPP 3.5 refers to the 'Model Scheme Text' to which all new Schemes or amendments are required to conform. The Model Scheme Text provides that the normal permitted development rights do not apply in respect of a place entered in a heritage list or, as in this case, a place located in a heritage area. The Model Scheme Text provisions require local government to have regard to the conservation and protection of any area designated as a heritage area under cl 7.2 of the Scheme, and whether the proposed development will adversely affect the significance of the area, 'including any adverse effect resulting from the location, bulk, form or appearance of the proposed development'.
Clause 6.5 of SPP 3.5 provides relevant considerations for local governments considering planning applications as well as the following specific considerations:
•Whether the proposed development responds sympathetically to the heritage values of the area as a whole and that part of the heritage area in the vicinity of the proposed development.
•Whether the siting, scale, style and form, materials and finishes of the proposed development responds sympathetically to the heritage values of the area.
•The local planning policy for the heritage area including any places designated of heritage significance and the objectives and guidelines for conservation and enhancement of the heritage area.

Clause 6.6 of SPP 3.5 provides development control principles for development within a heritage area, and relevantly includes the following:
•Development within a heritage area should respect and complement the heritage significance of the area as identified in the local planning policy. A respectful design approach gives special consideration to the siting, scale, architectural style and form, materials and finishes of the proposed development in relation to its neighbours, without copying historic detailing or decoration.
…
•Any new buildings erected in heritage areas should be designed and sited in a way that respects and complements the heritage significance of the area. New construction that is imaginative, well designed and harmonious should not be discouraged.

Codes

Clause 2.4 of Pt 2 of the Codes states:
Where a proposal does not meet deemedtocomply provision(s) of the RCodes and addresses design principle(s), the decisionmaker is required to exercise judgement to determine the proposal.
Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).
Clause 2.5 of Pt 2 of the Codes refers to the exercise of judgment and states:
2.5.1
Subject to clauses 2.5.2 and 2.5.3, the decisionmaker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes.
The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provision(s).
2.5.2
In making a determination on the suitability of a proposal, the decision‑maker shall exercise its judgement, having regard to the following:
(a)any relevant purpose, objectives and provisions of the scheme;
(b)any relevant objectives and provisions of the R-Codes;
(c)a provision of a local planning policy adopted by the decision‑maker consistent with and pursuant to the R-Codes; and
(d)orderly and proper planning.
The elements of the Codes relevant to the consideration of this matter are discussed in more detail later in these reasons.

Local planning policies

The City has two local planning policies relevant to the consideration of this matter:
•Character Retention Guidelines; and
•Local Planning Policy 2.6 - Residential Building Heights (Building Heights Policy)
The relevant objectives and provisions of these policies form a basis for the City's reasons for refusal and are discussed in detail later in these reasons.

City's decision

The City refused the proposed development on 14 March 2014 for the following reasons:
1.The proposed development is inconsistent with the objectives of the City of Stirling Local Planning Policy 2.6 (Residential Building Heights).
2.The proposed development is inconsistent with the objectives of the City of Stirling Local Planning Policy 3.1 (Character Retention Guidelines Mt Lawley, Menora and Inglewood).

Issues

The respondent identified the following issues as arising for determination by the Tribunal:
1)Whether the proposal is consistent with the objectives of the Heritage Protection Area Special Control Area set out in cl 6.6.1 of the LPS 3.
2)Whether the proposal is consistent with Part 4 of the Character Retention Guidelines.
3)Whether the proposal is consistent with the objectives of the Building Heights Policy.
4)Whether the proposal satisfies the design principles of Element 5.1.6 (Building height) and Element 5.2.5 (Sight lines) of the Residential Design Codes.
As mentioned earlier, in 2011, the Tribunal granted approval for the demolition of the 1908 Federation bungalow originally located on this site. The Tribunal found that while it was preferable to retain the original dwelling, it would be difficult to adapt it without impacting on its heritage value, particularly given the close proximity of the existing rear dwelling and the unusually large 20 metre front setback.
At [59] of Paz 2011, the Tribunal stated:
Should the dwelling be demolished, while it would provide the opportunity to construct a dwelling fulfilling reasonable expectations in terms of contemporary living standards, it would also provide for the construction of a dwelling which met the requirements of the Guidelines and current planning provisions, and establish a street setback more consistent with the other dwellings in the streetscape of Third Avenue.
Now that the original dwelling has been demolished, it is the development application for the replacement dwelling that is the subject of these review proceedings. The parties in Paz 2011 and these proceedings are the same, as are the heritage experts called to give evidence. Ms Laura Gray was called by the applicants, and Ms Nerida Moredoundt was called by the respondent, for both hearings.
The identified issues are primarily concerned with the streetscape presentation of the proposed dwelling to Third Avenue. The issues refer to different aspects of the relevant planning framework, but there is considerable overlap as will be seen in the discussion below. Therefore, the Tribunal has chosen to address issues 1 and 2 together and issues 3 and 4 together.

Issues 1and 2:

•Whether the proposal is consistent with the objectives of the Heritage Protection Area Special Control Area set out in cl 6.6.1 of LPS 3.
•Whether the proposal is consistent with Part 4 of the Character Retention Guidelines.

The objectives of the Heritage Protection Area Special Control Area contained in cl 6.6.1 of LPS 3 are set out in full earlier in these reasons. It is common ground that the objective relevant to this review is:
(c)To ensure that new buildings (where permitted), alterations, additions to existing buildings, carports, garages and front fences are in keeping with the heritage character of the area, respect the scale and proportions of surrounding buildings, and are designed to fit into the existing streetscape;
It was the respondent's contention that the proposal does not satisfy this objective because the proposed setbacks to the primary street do not ensure that the dwelling is in keeping with the heritage character of the area, nor does the design respect the scale and proportions of the surrounding buildings. Of particular concern to the respondent is the location of the proposed dwelling forward of the neighbouring dwellings on either side of the site.
It was the applicants' contention that the proposed street setbacks are consistent with the greater surrounding area average and median setbacks, not just the immediate adjoining properties. While acknowledging that under clause 4.2.1.1 of the Character Retention Guidelines a front setback of 10.5 metres would be required, the applicants contended that the Character Retention Guidelines do not consider the impact on subdivided lots with reduced lot depths, such as the subject lot. It was argued that, in this case, a setback of 10.5 metres would render one‑third of the lot as unusable, and that this is a considerable impost when considering the lot size.
Part 4 of the Character Retention Guidelines contains provisions for residential development and includes provisions for the conservation of and additions to traditional houses, new single houses, infill development, carports, garages, fences and gardens.
This proposal is considered to be infill development as it involves a grouped dwelling. The relevant objective for infill development is to ensure that it reflects the style, scale and form of traditional houses within the streetscape. Where new dwellings are proposed as infill development, the provisions for new single houses contained in clause 4.2 of the Character Retention Guidelines apply for streetscape, built form and design.
Relevantly, the objectives for new single houses are to:
•Ensure that new buildings reflect the traditional style, scale and form of traditional houses and the street pattern, in terms of design, setbacks and orientation;
•Retain the appearance of a single-storey built form from the street; and
•Retain natural levels of the site.
In regard to street setbacks, clause 4.2.1.1 of the Character Retention Guidelines states:
a)The ground floor of new buildings shall follow the established street setback, for both primary and secondary streets irrespective of the relevant R Code street setback;
b)Where the street pattern varies, the ground floor of new buildings shall be set back from the street mid-way between that of the traditional houses on either side;
c)Second storeys shall be set back a minimum of 4 metres from the face of the predominant building line (as determined by the City) wall immediately below; and
d)A reduction in the front setback to enable a garage or carport to be located to the side or rear of the property may be considered, but only where this will preserve the streetscape value of the area and where the required setback is reduced by a maximum of 1 metre.
The property at No 84 Third Avenue, immediately to the south‑east of the subject site, is a Federation bungalow with heritage significance. This property has a front setback of approximately 11 metres (9 metres to the verandah). The property at No 82 Third Avenue is also a traditional Federation bungalow with a similar front setback, but it has a double carport located within this setback area. The property at No 88 Third Avenue is a traditional Inter‑war dwelling located immediately to the north‑west of the subject site. This property has a front setback of approximately 10.5 metres and has a double carport in the front setback area.
The proposed dwelling has a setback of 7 metres to the ground floor bedroom and a setback of 7.96 metres to the integrated garage. The upper floor is set back a further 3 metres to the theatre and 5.28 metres to bedroom 2. The applicants contended that these setbacks are appropriate in the context of varied street setbacks in the locality, and given the depth and area of the subdivided lot.
It was Ms Gray's evidence that 'the streetscape context is an eclectic combination of single storey and two storey residences, traditional and contemporary, and a variety of setbacks, many at considerably less than the proposed 7.0 metres to the primary frontage, and 10.0 metres to the first floor frontage of the proposed residence'. In this context, Ms Gray was of the opinion that the proposed dwelling 'is of a contemporary design with relevant scale, proportion and detail that responds to the eclectic "heritage" character of the streetscape that includes contemporary residences of similar scale, proportion and detail, traditional residences, some with carports or additions, and a place of identified heritage significance'.
It was Ms Gray's view that the proposed dwelling satisfies the Character Retention Guidelines as much as, or more than, any of the contemporary dwellings in the immediate area. It was her view that the contemporary buildings respond to the urban character of the area, not necessarily the heritage character of the area, and in order to strictly comply with the form, scale and character of the traditional buildings, then only single storey would be appropriate because there are no original two storey dwellings in the area.
Ms Moredoundt agreed that in an ideal world two storey dwellings would not be allowed in the Heritage Protection Area, but she argued that the Character Retention Guidelines do allow for two storey dwellings provided they satisfy the guideline objectives. It was Ms Moredoundt's evidence that the 'dwellings within the immediate vicinity of the subject property are traditional dwellings with relatively consistent setbacks'.
During the hearing, the heritage experts discussed the differences between urban character areas and heritage areas. Ms Gray was of the view that, in accordance with clause 6.2 of SPP 3.5, significant heritage elements within the Heritage Protection Area should be identified in more detail. Ms Moredoundt stated that clause 6.2 of SPP 3.5 requires a clear statement of significance for the designation of a Heritage Protection Area, with the identification of the significant fabric of the area, not the level of significance of each contributor. It was her view that this had been achieved by the statement of significance for the area contained in Part 2 of the Character Retention Guidelines.
Part 2 of the Character Retention Guidelines provides a residential character analysis of each of the Heritage Protection Areas of Mt Lawley, Inglewood and Menora. The Mt Lawley Heritage Protection Area is divided into two further areas - Estates 1&2 and East. The subject site is located within Mt Lawley (East) which, according to the Character Retention Guidelines, is an area of 'considerable' significance, for the following reasons:
Mount Lawley East is a good example in Perth of a substantially intact residential area characterised by large and medium sized homes from the early twentieth century and inter-war period, many of high architectural quality, in established landscaped gardens.
The area has aesthetic, historic, and social significance for the following reasons:
•Typical example of rectangular grid road and subdivision pattern;
•Good examples of housing from the early 1900s and inter-war period including some very good examples of Federation bungalow and Californian Bungalow style houses;
•Street design including the general street layout including grass verges and street trees; [and]
•Garden layout, design and quality.
It was Ms Moredoundt's view that the Character Retention Guidelines identify the traditional houses and not the contemporary dwellings as contributors to the Heritage Protection Area, and the guidelines set out parameters to minimise the impact of new dwellings on the Heritage Protection Area.
In relation to the difference between heritage areas and urban character areas, the Tribunal prefers the evidence of Ms Moredoundt and accepts that the Mt Lawley (East) Heritage Protection Area has been identified as having 'considerable' heritage significance for the reasons stated above. As it is the traditional housing from the early 1900s and the Inter‑war period that has been identified as part of this heritage significance, the Tribunal agrees with Ms Moredoundt that it is important for new dwellings to respect the front setbacks of existing traditional housing, notwithstanding that some contemporary dwellings may have reduced setbacks. In this case, the Federation and Inter‑war dwellings on either side of the subject site are set back 11 and 10.5 metres respectively, while the proposed dwelling is to be set back 7 metres from Third Avenue. The Tribunal finds that a front setback of 7 metres does not satisfy either the objectives for infill and new single house or the requirements set out in clause 4.2.1.1 of the Character Retention Guidelines.
The applicants argued that the reduced size and depth of the lot as a result of subdivision meant that a front setback of 10.5 metres would be onerous. The Tribunal does not agree with this, and notes that the proposed new dwelling is of significant size with a total built floor area of 421.45m² (including the integrated garage and store). The previous Tribunal decision (Paz 2011), allowing the demolition of the original dwelling on the site, was based, in part, on providing the opportunity to construct a dwelling that would fulfil the reasonable expectations of contemporary living standards and to provide for the construction of a dwelling that would meet the Character Retention Guidelines, while establishing a street setback more consistent with the other dwellings in Third Avenue. The Tribunal does not believe the proposed development achieves this. A front setback which is 3.5 to 4 metres less than that of the traditional dwellings on either side of it will have a negative impact on the heritage significance of the neighbouring dwellings, and on the heritage character of the streetscape and the heritage protection area as a whole. The Tribunal is of the view that a dwelling that satisfies the reasonable expectations of contemporary living standards could be designed on this site to include a front setback of 10.5 metres. The subdivided lot has a width of 13.73 metres, a length of 34.24 metres and a total area of 466m². This is not considered to be a small site in an inner suburban context. While it is not the role of the Tribunal to provide design advice, it is worth pointing out that the current proposal has a larger than necessary footprint; one example is the 17.5m² void over the family area within the upper floor volume.
The respondent was also concerned that the architectural design of the proposal does not respect the scale and proportions of the surrounding buildings and does not satisfy a number of the elements in Part 4 of the Character Retention Guidelines for the following reasons:
•clause 4.2.2.1 b) ‑ the bulk of the building has not been minimised through articulation of larger wall lengths and the stepping back of upper storey walls;
•clause 4.2.2.5 ‑ there is no verandah proposed;
•clause 4.2.2.7 ‑ no schedule of colours and materials; [and]
•clause 4.2.2.7 e) ‑ proposed red Colorbond roof sheeting ‑ existing grouped dwelling has tiled roof and tiles are predominant roofing material in vicinity[.]
Part 4 of the Character Retention Guidelines provides guidance in terms of, amongst other things, built form and design as follows:
4.2.2.1Design
a)New buildings shall be traditional in design and reflect the heritage style and scale of traditional houses within the streetscape. Refer Part 2 – Residential Character Analysis of these guidelines.
b)In regard to two storey buildings, the visual bulk of the building should be minimised through articulation of larger wall lengths, and the stepping back of upper storey walls.
c)Where a wall is permitted to be located on the boundary, that wall shall be constructed as a traditional parapet wall.
4.2.2.5Verandahs
a)Verandahs fronting the street shall be a minimum of one‑third the width of front elevation; and
b)Verandahs shall have a minimum depth of 2 metres.
4.2.2.7Materials & Details
a)Traditional materials of face brick and / or render shall be used for the solid wall surface of the façade. The proportions and detailing of these should reflect the traditional houses in the streetscape (refer Part 2 ‑ Residential Character Analysis of these guidelines);
b)Bricks shall be in the red colour range. Recycled or handmade bricks are preferred. Mortar shall be in traditional colours;
c)Render shall be in a traditional finish and colour, and consistent with the traditional houses in the streetscape;
d)Where limestone is used, it shall be located at the base of the building, and shall not exceed more than 20% of the solid wall surface of the façade (NB; limestone in this instance refers to the use of stone or limestone cladding ‑ limestone coloured bricks are not permitted);
e)Roofs shall be constructed with tiles in red or terracotta hues. Corrugated iron or pre‑finished roof sheeting in red, orange, terracotta, or zincalume may be considered only where it is in keeping with the architectural style of the dwelling, surrounding roofing materials, and the objectives of these guidelines; and
f)Balustrades, verandah posts and the like shall be constructed in timber or painted metal. Brick or rendered brick verandah posts and balustrading may be appropriate in some instances where it meets the objectives of these guidelines.
Ms Moredoundt expressed her opinion on the proposed built form and design elements as follows:
•There is an inadequate front porch/verandah, which should be at least 2 metres in depth and extend at least 1/3 of the front elevation to reflect the predominant street front presentation of traditional dwellings;
•The upper floor is not setback sufficiently to enable the new dwelling to appear as a single storey building from the street, thus disrupting the traditional streetscape;
•The apparent bulk and scale of the upper floor has not been minimised through adequate articulation;
•The proposed garage is too wide, being more than 1/3 of the front elevation in width and therefore dominates the front elevation in a way that is not reflective of traditional dwellings;
•The proposed parapet wall is located forward of the acceptable setback line and will be visually intrusive from the street; [and]
•The proposed pre-finished steel roof cladding is inappropriate and should be similar to the roof tiling found on the traditional dwellings in the vicinity[.]
It was Ms Moredoundt's evidence that taken together these elements of non‑compliance contribute to a proposal that does not reflect the traditional style, scale and form of the traditional houses and street pattern, nor does it retain the appearance of a single storey dwelling from the street as required in order to minimise the impact of new development on the Heritage Protection Area.
The applicants contended that the 'visual bulk of the dwelling has been minimised through the articulation and stepping back of the upper storey walls in the front elevation and sections that will be [visible] from the street'. The section of wall that is not articulated is located on the south‑eastern elevation and 'will not be prominent from the street due to existing dwellings blocking [the] line of sight'. They argued that setting back the upper floor 3 metres as proposed, or 4 metres as required by the Character Retention Guidelines, will not impact adversely or 'differ in its appearance of a single storey built façade to the street', particularly as the theatre is located immediately behind the gable section of the lower roof.

As stated earlier, Ms Gray was of the opinion that the proposal satisfies the built form and design requirements of the Character Retention Guidelines as much as, or more than, any of the contemporary dwellings in the immediate area, particularly given that the existing streetscape context is an eclectic combination of single and two storey traditional and contemporary dwellings with differing front setbacks.
In regard to the architectural design elements of the proposal, the Tribunal is of the view that the applicants have attempted to respond to the scale, style, built form and materials of the traditional and contemporary dwellings in the Heritage Protection Area, and agrees with Ms Gray that this section of Fifth Avenue is characterised by an eclectic mix of dwellings which includes red Colorbond roofs, carports in front setback areas, and buildings with no verandahs. But, in this case, the Tribunal prefers the evidence of Ms Moredoundt that it is the cumulative impact of the response to the individual design elements identified in Part 4 of the Character Retention Guidelines that contributes to a proposal that does not reflect the traditional style, scale and built form of the traditional houses in the street.
The Tribunal finds that the proposal is not consistent with the objectives set out in cl 6.6.1 of LPS 3 as it is not in keeping with the heritage character of the area, does not respect the scale and proportions of the surrounding buildings, and is not designed to fit into the existing streetscape. Nor does the design or the setbacks reflect the traditional style, scale and built form of the traditional houses and the street pattern as required by the objectives for new single houses (and grouped dwelling infill development) in the Character Retention Guidelines.
The Tribunal is of the view that the front setbacks and the architectural design of the proposal is not sympathetic to the heritage values of the area, and will have an adverse effect on the heritage significance of the neighbouring properties and the streetscape, and the Heritage Protection Area as a whole.

Issues 3 and 4:

•Whether the proposal satisfies the objectives of the Building Heights Policy
•Whether the proposal is consistent with the design principles of Element 5.1.6 (Building height) and Element 5.2.5 (Sight lines) of the Codes

Issues 3 and 4 are interrelated and should be considered together, as they deal primarily with building height requirements under the City's Building Heights Policy and the Codes.
With regard to the issue relating to Element 5.2.5 (Sight lines) of the Codes, it was agreed during the hearing that this could be addressed by way of a condition requiring the front fence to be designed in accordance with the deemed‑to‑comply requirements of the Codes.
In regard to building height, the Character Retention Guidelines provides for infill dwellings as follows:
a)The building height of new dwellings shall be in accordance with the City's Residential Building Heights Policy. Consideration may be given to nominal height increases, but only where such increases facilitate traditional ceiling heights;
b)New buildings shall respect the scale and proportions of traditional houses within the streetscape; and
c)Ground floor wall plate heights shall be a minimum of 3 metres (measured from natural ground level to plate height).
The Building Heights Policy sets out deemed‑to‑comply standards which replace the deemed‑to‑comply standards for Element 5.1.6 (Building height) of the Codes. It was common ground that the deemed‑to‑comply building height for the subject site is 6 metres, measured from the Average Natural Ground Level (ANGL).
The respondent calculated the proposed wall height, and therefore the building height, as 6.53 metres for this proposal, while the applicants calculated it as 6.21 metres. The difference in these figures was discussed at the hearing and appears to be explained by the method used to calculate the ANGL. Whether it is 6.53 or 6.21 metres, the building height does not satisfy the deemed‑to‑comply provisions of the Building Heights Policy and therefore needs to be assessed against the objectives of the Building Heights Policy and the design principles of the Codes.
The objectives of the Building Heights Policy are as follows:
•To ensure that the height of buildings are consistent with the desired scale in a given locality; and
•To ensure that the height of a building does not overly impact on the streetscape or on neighbouring properties.
For the purposes of the Building Heights Policy, neighbouring sites include the properties directly and diagonally opposite as well as to the rear of the subject site.
The design principles of Element 5.1.6 (Building height) of the Codes are:
P6Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves; and where appropriate maintains:
•adequate access to direct sun into buildings and appurtenant open spaces;
•adequate daylight to major openings into habitable rooms; and
•access to views of significance.
The respondent contended that the proposed building height does not meet the objectives of the Building Heights Policy as it is not consistent with the scale of dwellings in the locality, given that the existing dwellings on either side of the site are single storey.
The applicants contended that the proposal did satisfy both the Building Heights Policy and the Codes in regard to building height. They argued that the height was determined by the requirement in the Character Retention Guidelines for a 3 metre ground floor wall plate height combined with the natural slope of the site resulting in a slightly higher overall building height than the deemed‑to‑comply 6 metres.
In regard to building height alone, the Tribunal agrees with the applicants and finds that the proposal satisfies the objectives of the Building Heights Policy and the design principles of Element 5.1.6 of the Codes. While the Tribunal has found in relation to issues 1 and 2 above that the proposal does not satisfy the relevant planning instruments in terms of setbacks, the Tribunal has no fundamental issue with a two storey dwelling on this site. In fact, both heritage experts agreed that while it would be preferable to only allow single storey dwellings in the Heritage Protection Area, the community expectation is that appropriately designed two storey dwellings should be allowed. The Tribunal has addressed setbacks and architectural design elements in issues 1 and 2 above. There was no evidence that the proposal would not maintain adequate access to direct sunlight or daylight to adjoining properties. Therefore, in regard to building height alone, the Tribunal finds that the proposal would be consistent with the desired scale of the locality and would not overly impact on the streetscape or the neighbouring properties if it was set back appropriately.

Conclusion

In regard to building height alone, the Tribunal has determined that the proposed dwelling:
•satisfies the objectives of the Building Heights Policy;
•satisfies the design principles of Element 5.1.6 of the Codes;
•would be consistent with the desired scale of the locality; and
•would not overly impact on the streetscape or the neighbouring properties if the proposal was set back appropriately.
But, in regard to the proposal's setbacks to the primary street, the Tribunal has determined that a front setback of 7 metres, in lieu of 10.5 metres, does not satisfy either the objectives for infill development and new single houses or the requirements set out in clause 4.2.1.1 of the Character Retention Guidelines. The Tribunal found that a front setback which is 3.5 to 4 metres less than that of the traditional dwellings on either side of it will have a negative impact on the heritage significance of the neighbouring dwellings, and on the heritage character of the streetscape, and the heritage protection area as a whole.
The Tribunal has also determined that the proposal is not consistent with the objectives set out in cl 6.6.1 of LPS 3 as it is not in keeping with the heritage character of the area, does not respect the scale and proportions of the surrounding buildings, and is not designed to fit into the existing streetscape.
It follows that the application for review should be dismissed and the decision of the City to refuse development approval should be affirmed.

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 14 March 2014 to refuse development approval for a two storey grouped dwelling at No 86 (Lot 174) Third Avenue, Mount Lawley is affirmed.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER