Pigliardo and ORS and Town of Vincent
[2007] WASAT 104
•9 MAY 2007
PIGLIARDO & ORS and TOWN OF VINCENT [2007] WASAT 104
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 104 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:29/2007 | 2 MAY 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MS R MOORE (SENIOR SESSIONAL MEMBER) | 9/05/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed and decision to refuse development approval affirmed | ||
| B | |||
| PDF Version |
| Parties: | SIMON PIGLIARDO ANTHONY PRINCI PHILIP SMITH TOWN OF VINCENT |
Catchwords: | Town planning Development application Conversion of block of six walkup flats built in 1941 into three grouped dwellings and erection of three grouped dwellings at rear Demolition of masonry stairs and erection of three lightweight double carports with flat roofs in street setback area Housing density Site coded R30/40 Development only permitted to R40 standards where "the existing house is to be retained" Whether "house" includes residential flat building Scheme confers discretion to increase permitted dwelling density by up to 50% if the proposed development conserves or enhances an existing dwelling or dwellings worthy of retention Whether development conserves an existing dwelling or dwellings by conversion to grouped dwellings Whether development conserves an existing dwelling or dwellings where front masonry stairs are demolished Whether proposed development is capable of approval at R60 standards Building height Whether proposed height is consistent with the desired height of buildings in the locality stated in locality plan Streetscape Whether demolition of masonry stairs and erection of carports would have an adverse impact on streestscape Privacy Application of Dumbleton principle |
Legislation: | Interpretation Act 1984 (WA), s 18 Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.1.1, cl 3.1.3, cl 3.1.3 A3, cl 3.3.1 A1, cl 3.7.1 A1, cl 3.7.1 P1, cl 3.8.1, cl 3.8.1 A1, Table 1 State Administrative Tribunal Act 2004 (WA), s 27(2) Town of Vincent Town Planning Scheme No 1, cl 6(3)(a), cl 10, cl 19(2), cl 20(1), cl 20(2), cl 20(3), cl 20(4), cl 20(4)(c), cl 38(5) |
Case References: | Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404 Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 Tangelo Design Consultants and Town of Vincent [2005] WASAT 67 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent to refuse development approval for the conversion of six multiple dwellings into three grouped dwellings and for the erection of a second building comprising three grouped dwellings at Nos 16 18 Knutsford Street, North Perth is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PIGLIARDO & ORS and TOWN OF VINCENT [2007] WASAT 104 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MS R MOORE (SENIOR SESSIONAL MEMBER)
- ANTHONY PRINCI
PHILIP SMITH
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning Development application Conversion of block of six walkup flats built in 1941 into three grouped dwellings and erection of three grouped dwellings at rear Demolition of masonry stairs and erection of three lightweight double carports with flat roofs in street setback area Housing density Site coded R30/40 Development only permitted to R40 standards where "the existing house is to be retained" Whether "house" includes residential flat building Scheme confers discretion to increase permitted dwelling density by up to 50% if the proposed development conserves or
(Page 2)
enhances an existing dwelling or dwellings worthy of retention Whether development conserves an existing dwelling or dwellings by conversion to grouped dwellings Whether development conserves an existing dwelling or dwellings where front masonry stairs are demolished Whether proposed development is capable of approval at R60 standards Building height Whether proposed height is consistent with the desired height of buildings in the locality stated in locality plan Streetscape Whether demolition of masonry stairs and erection of carports would have an adverse impact on streestscape Privacy Application of Dumbleton principle
Legislation:
Interpretation Act 1984 (WA), s 18
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.1.1, cl 3.1.3, cl 3.1.3 A3, cl 3.3.1 A1, cl 3.7.1 A1, cl 3.7.1 P1, cl 3.8.1, cl 3.8.1 A1, Table 1
State Administrative Tribunal Act 2004 (WA), s 27(2)
Town of Vincent Town Planning Scheme No 1, cl 6(3)(a), cl 10, cl 19(2), cl 20(1), cl 20(2), cl 20(3), cl 20(4), cl 20(4)(c), cl 38(5)
Result:
Application for review dismissed and decision to refuse development approval affirmed
Category: B
Representation:
Counsel:
Applicants : Mr MA Turnbull (Acting as Agent)
Respondent : MR SJ Bain (Acting as Agent)
Solicitors:
Applicants : Greg Rowe & Associates (Town Planners)
Respondent : SJB Town Planning & Urban Design (Town Planners)
(Page 3)
Case(s) referred to in decision(s):
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67
(Page 4)
Summary of Tribunal's decision
1 The applicants proposed the conversion of a block of six walk-up flats built in about 1941 into three grouped dwellings and the erection of a building comprising three further grouped dwellings at the rear. The development involved the demolition of the front stairway structures and the erection of three double carports with flat roofs in the street setback area.
2 The principal issues were:
• whether the development conformed to the Residential Design Codes of Western Australia (2002)in relation to housing density;
• whether the development conformed to the Residential Design Codes in relation to building height;
• whether there would be an adverse impact on streetscape; and
• whether there would be an adverse impact on the privacy of an adjacent residential property.
3 The Tribunal determined that the development was incapable of approval, because of excessive housing density. Had the development not involved:
• elevated outdoor living areas oriented to the private open space of the adjacent residential property;
• demolition of the front stairway structures which are an essential and integral element of the walk-up residential flat building; and
• erection of carports in the front setback area,
- then development up to R60 density standards would have been appropriate. However, even at a housing density of R60, the site is incapable of accommodating six grouped dwellings.
4 The Tribunal determined that the development did not conform to the Residential Design Codes in relation to building height, as the new
(Page 5)
- building would clearly present as three storeys in height when viewed from the public domain and residential properties.
5 The Tribunal also determined that, if the application were capable of approval, it should be refused in the exercise of planning discretion, because it would have an adverse impact on streetscape, by reason of the demolition of the stairway structures and erection of the carports in the setback area, and on privacy of the rear verandah and garden of the adjacent property.
6 In its conclusion, the Tribunal noted that the site is capable of development in density terms for:
• the conversion of the six flats into three grouped dwellings and the erection of two further grouped dwellings at the rear;
• the retention of four of the flats or their conversion into Single Bedroom Dwellings, the conversion of two flats into a grouped dwelling and the erection of two further grouped dwellings at the rear (with the exercise of discretion to permit the minimum site area for the Single Bedroom Dwellings to be reduced by one-third); or
• the retention of all six flats or their conversion into Single Bedroom Dwellings and the erection of two grouped dwellings at the rear (with the exercise of discretion to permit the minimum site area for the Single Bedroom Dwellings to be reduced by one-third and the exercise of discretion to permit a 5% reduction in average site area for the grouped dwellings).
The benefits of the second and more so of the third form of development would include:
• retention of the building not only in form but also in function;
• continuation of the historic use of the stairways;
• housing choice; and
• more affordable housing.
(Page 6)
Introduction
7 These proceedings involve an application for review under s 252(1) of the Planning and Development Act 2005 (WA) of the decision of the Town of Vincent (Town or Council) to refuse development approval for the conversion of six residential units into three grouped dwellings and for the erection of a building comprising three further grouped dwellings at No 16-18 Knutsford Street, North Perth (site). The site also has a frontage to Nova Lane which is a public road having a width of 7.0 metres. The site has a regular, rectangular shape, a frontage to Knutsford Street to the west of 25.15 metres, a frontage to Nova Lane to the south of 40.25 metres, and an area of approximately 1012 square metres.
8 The six existing residential units are contained within a two storey walk-up residential flat building constructed in about 1941. The building is in the Inter-war Contemporary style and maintains its original presentation to Knutsford Street. The Town's heritage officers consider that the building is worthy of retention, as it has value in the evolution of the locality and is indicative of the type of flats that were constructed in the Town during the Inter-war period. An important element of the building's presentation is two substantial masonry stairway structures which match the brick façade and low brick street front walls of the building. The stairways each include an element which is parallel to the street and an element that is perpendicular to the street. The elements that are parallel to the street rise from a height equivalent to that of the low street front walls to approximately 1.5-2.0 metres above footpath level at the point where the element which is perpendicular to the street commences. The southern stairway leads to a small front entry balcony for the southern upper unit and the northern stairway leads to a shared entry balcony for the northern two upper units. The entry balconies are set within masonry piers which match the façade of the rest of the building.
9 The development application proposes the demolition of the front stairway structures and the erection of three lightweight steel double carports with flat roofs and with widths of approximately 5.0 metres each in the street setback area occupying in total approximately 60% of the building's frontage. The upper entry balconies and the masonry piers are to be retained. The six residential units are proposed to be converted into three grouped dwellings. The development application also proposes the demolition of an existing and dilapidated brick and iron garage accessed from Nova Lane and the erection of a flat roofed three level building in the rear portion of the site to comprise three further grouped dwellings.
(Page 7)
- The building would comprise three double carports off Nova Lane, store room, entry and stairway to each dwelling at the lowest level, an elevated front courtyard with an area of 23 square metres (above the carport), open plan living, dining and kitchen (partially above the carport) and family room, laundry and smaller courtyard (approximately 1.2 metres below the living, dining and kitchen area) in each dwelling at the middle level, and three bedrooms, an en-suite and a bathroom in each dwelling at the uppermost level. At the front or southern portion of the uppermost level, the building would be three storeys in height.
10 The development application was advertised for public comment. The Council received three submissions in favour of the application and four submissions against. At its meeting on 5 December 2006, the Council received a report from its assessing officer recommending that it grant conditional development approval. However, the Council resolved to refuse the development application for the following seven reasons:
"1. The extent of density bonuses sought is unreasonable.
2. Not meeting minimum site area requirements.
3. Non-compliance with building height requirements.
4. Carports facing Knutsford Street are too narrow for double carports resulting in insufficient on-site parking.
5. Non-compliance with the Town's Parking and Access Policy.
6. Impacts of carports on streetscape and loss of on-street parking.
7. Consideration of objections received."
Issues for determination
11 The Council's reasons for refusal concerning the size of the carports facing Knutsford Street and non-compliance with the Town's Parking and Access Policy were resolved between the parties on the basis of conditions subject to which the application could be approved.
12 The following four principal issues arose for determination in the review:
(Page 8)
- 1. Whether the proposed development conforms to the Residential Design Codes of Western Australia (2002) (Codes) in relation to housing density.
2. Whether the proposed development conforms to the Codes in relation to building height.
3. Whether the proposed development would have an adverse impact on streetscape.
4. Whether the proposed development would have an adverse impact in relation to privacy of an adjacent property at No 14, Knutsford Street across Nova Lane.
13 The Tribunal will address each of these issues in turn.
Housing density
14 The site is zoned "Residential" under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme) and is located within the North Perth Precinct under cl 10 of the Scheme. Clause 19(2) of TPS 1 states that, unless otherwise provided in, or consistent with, the Scheme, the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of the Codes. Clause 20(1) of the Scheme states that the permitted site density per hectare under the Codes for any land is to be determined by reference to the Codes density number illustrated on the Scheme Map for that land. The Codes density number illustrated on the Scheme Map for the site is "R30/40". Clause 20(4)(c) of the Scheme states that, notwithstanding the provisions of the Codes, the following special application of the Codes applies in the North Perth Precinct:
"Dual Coding: Within the area coded R30/40, development will only be permitted to R40 standards where the existing house is retained and where criteria specified in the precinct document is satisfied."
15 The minimum and average site area per dwelling for a grouped dwelling required by cl 3.1.1 and Table 1 of the Codes for the R30 and R40 codes are as follows:
• R30 – minimum 270 square metres and average 300 square metres;
(Page 9)
- • R40 – minimum 200 square metres and average 220 square metres.
16 The proposed development contains site areas per dwelling of 170 square metres, 150 square metres, 127 square metres, 143 square metres, 140 square metres and 143 square metres and an average site area per dwelling of 168.67 square metres. The proposed site areas are well below the minimum and average site area per dwelling for either the R30 or R40 codes.
17 Nevertheless, because of another provision of the Scheme to which we will turn shortly, it is material to determine whether development will be permitted to R40 standards on the site in accordance with cl 20(4)(c) of TPS 1.
18 Mr Simon Bain, a consultant town planner who both represented and gave evidence on behalf of the Council, contends that development is not permitted to R40 standards in the circumstances of this case for each of two reasons. First, the existing residential flat building is not a "house" whereas cl 20(4)(c) of the Scheme uses that word. Second, the criteria in relation to density specified in Policy No: 3.3.18 – Knutsford Locality Plan 18 (Knutsford Locality Plan) are not satisfied.
19 The residential flat building is plainly not a "house" if the literal meaning of that word were applied. The parts of the North Perth Precinct which are zoned "Residential" and coded "R30/40" are characterised by and almost exclusively comprised of houses. However, it appears that the purpose or object of cl 20(4)(c) of TPS 1 is to encourage the retention of buildings that are indicative of the era in which the locality was developed and generally contribute to its existing character. It would be contrary to the purpose or object of the provision to interpret it according to its literal meaning. As McHugh JA held in Kingston v Keprose Pty Ltd(No 3) (1987) 11 NSWLR 404 at 423, "if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the [provision]"; see also Interpretation Act 1984 (WA) s 18. On its proper interpretation, therefore, the word "house" in cl 20(4)(c) of the Scheme includes a residential flat building.
20 Clause 3(iv) of the Knutsford Locality Plan states as follows:
"In areas of split coding, where an established dwelling which contributes to the identifiable character of the Knutsford
(Page 10)
- Locality is to be retained and/or restored, infill development to the rear of the lot may be permitted at the standards consistent with a higher density code subject to the development meeting the following criteria:
a) no unreasonable significant adverse impact on adjacent residences in terms of privacy and amenity;
b) no unreasonable loss of healthy, mature trees; and
c) the design responds to the design and character of the existing dwelling on the lot and the streetscape in general."
21 For the same reason as that given in relation to the meaning of the word "house" in cl 20(4)(c) of TPS 1, the word "dwelling" in cl 3(iv) of the Knutsford Locality Plan relevantly includes a residential flat building. This interpretation promotes the purpose or object of the provision. Of course, in most cases, the literal meaning of "dwelling" will accord with the purpose or object of the provision.
22 However, the Tribunal considers that the proposed development does not meet criteria (a) or (c) stated in the clause.
23 As noted earlier, each of the three proposed grouped dwellings in the new building at the rear of the site include a 23 square metre courtyard located above the carport. Although these courtyards are located on the southern side of the building, they are likely to function as primary open space, given their size and good functional relationship with the open plan living dining kitchen area of each dwelling. Each courtyard has a set back of 2.5 metres from the Nova Lane frontage. Directly across Nova Lane from this portion of the site is the rear garden area of No 14 Knutsford Street. Ms Nicole Wyburn, who has resided at No 14 Knutsford Street for 22 years, gave evidence that, from the elevated position of the courtyards and internal living areas behind, "the occupants would have views of our entire backyard, our rear verandah, our internal living areas and would deprive us of any privacy at all".
24 Both Mr Bain and Mr Matthew Turnbull, a consultant town planner who both represented and gave evidence on behalf of the applicants, noted that the setback of 9.5 metres from the edge of the courtyards to Ms Wyburn's property satisfies the Acceptable Development provision in cl 3.8.1 A1 of the Codes. That provision states that development in which unenclosed outdoor active habitable spaces (balconies, decks, verandahs
(Page 11)
- and the like) which are located more than 0.5 metre above natural ground level are set back 7.5 metres are deemed to meet the relevant Performance Criteria. The Performance Criteria state "avoid direct overlooking between … outdoor living areas of the development site and … outdoor living areas within adjoining residential properties … ". Consequently, Mr Bain did not argue that the development involves unreasonable significant adverse impact on No 14 Knutsford Street in terms of privacy.
25 In Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 at [23], the Tribunal endorsed the following principle as stated in Tangelo Design Consultants and Town of Vincent [2005] WASAT 67 at [42]:
"In most planning assessments, the fact that a development conforms to a relevant provision of the [Codes] is likely to be significant in relation to a related required matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration."
26 This principle is apparently now referred to as the Dumbleton principle.We consider that this is a case in which the Dumbleton principle has application. Although the fact that the proposed development conforms to the visual privacy provision in cl 3.8.1 of the Codes is significant in relation to whether there is an unreasonable significant adverse impact on No 14 Knutsford Street in terms of privacy for the purposes of cl 3(iv) of the Knutsford Locality Plan, we find that, in the particular circumstances of this case, the location of the three courtyards at the middle level of the proposed development involves an unreasonable significant adverse impact in terms of privacy on the rear verandah and rear garden of No 14 Knutsford Street for the following three reasons.
27 First, the established relationship between the site and No 14 Knutsford Street does not involve any significant privacy impact. Although there are three balconies at the rear of the upper level of the residential flat building, they are each small, incapable of active use and oriented to the east, rather than directly towards No 14 Knutsford Street. This established relationship has existed for 65 years. Although a number of properties on the northern side of Nova Lane have been redeveloped, as Ms Wyburn pointed out, they generally do not have balconies facing Nova Lane and the properties to its south.
(Page 12)
28 Second, the proposed courtyards are large, have a good functional relationship with the internal living areas and are likely to be actively used as a primary outdoor living area.
29 Third, the privacy impact would arise from three three-bedroom dwellings each oriented towards Ms Wyburn's garden.
30 Furthermore, the design of the proposed development does not respond to the design and character of the existing building and the streetscape in general, because of the demolition of the stairway elements and the erection of three carports in the street setback area. Each of Mr Bain, Ms Wyburn, and Cr Ian Ker gave evidence that the walk-up residential flat building is unique in the locality and, in particular, that the front stairway structures which provide the means of "walking up" is a unique element. We find that the stairway structures are an essential and integral element of the design and character of the existing building and of the immediate streetscape of the site. The design of the development, which includes demolition of these structures, does not, therefore, respond to the design and character of the building.
31 Furthermore, the proposed lightweight steel double carports in the setback area do not respond to the design and character of the existing building and the streetscape in general. It is correct, as Mr Turnbull points out, that there are carports with pitched roofs at each of the two adjoining properties to the north and that there are three double carports with pitched roofs serving grouped dwellings across the road from the site. However, because of the proximity of these carport structures to the street and the fact that they significantly obscure views of the building behind, they are an intrusive element in the streetscape. They are also quite uncharacteristic when the streetscape is viewed – as Mr Bain suggests it should be – in a slightly broader context. The street is generally characterised by early 20th century single houses in landscaped settings behind low front walls or fences. The proposed carports do not respond to the generally open character of the streetscape.
32 Furthermore, the proposed carports do not respond to the design and character of the residential flat building, because, although the proposed roofs are flat, for a pedestrian walking on the same side of the street, the roofs would obscure a large part of approximately 60% of the building's façade.
33 It follows that, because of the location of the courtyards of three of the grouped dwellings relative to the garden area of
(Page 13)
- No 14 Knutsford Street, the proposed demolition of the stairway structures and the proposed erection of carports in the front setback area of the existing building, development cannot be permitted to R40 standards under cl 20(4)(c) of the Scheme. However, if the proposed development did not involve or incorporate these aspects, the Tribunal would have found that development is permitted to R40 standards.
34 Clause 20(2) of the Scheme states that, subject to compliance with the procedures set out in the Codes for notifying affected owners and occupiers, the Council may grant an increase in the permitted dwelling density by up to 50% if "the proposed development conserves or enhances an existing dwelling or existing dwellings worthy of retention". Clause 20(3) of the Scheme states that where the Council allows an increase in the permitted dwelling density, the standards and provisions of the Codes which relate to that higher density are to apply.
35 For the same reason as that given earlier in relation to the meaning of the word "house" in cl 20(4)(c) of the Scheme, the Tribunal considers that the words "an existing dwelling or existing dwellings" in cl 20(2) of the Scheme relevantly include the residential flat building. The apparent object or purpose of the provision is to encourage the conservation of buildings that are indicative of the era in which the locality was developed and generally contribute to its existing character. A residential flat building can be relevantly conserved even though dwellings within it are converted internally to create grouped dwellings. However, for reasons also given earlier, the residential flat building in this case is not relevantly conserved unless the essential and integral element of the front stairway structures is retained. If the development were to have retained this element and if all car parking were located behind the building, the Tribunal would have found that the proposed development conserves the residential flat building which is worthy of retention and that it should therefore grant an increase in the permitted dwelling density by up to 50%. The permitted dwelling density would, therefore, have been R60.
36 However, even if the permitted dwelling density were R60, the proposed development would not be capable of approval under the Scheme because of excessive housing density. Clause 3.1.1 and Table 1 of the Codes require a minimum site area of 160 square metres and an average site area of 180 square metres for a grouped dwelling in the R60 code. As noted earlier, all but one of the proposed grouped dwellings have a site area that is less than 160 square metres and the average site area is less than 180 square metres. Even if the discretion in cl 3.1.3 of the Codes to permit a variation of up to 5% in site area were exercised, the
(Page 14)
- development would still not be capable of approval at a permitted dwelling density of R60, because of excessive dwelling density. The site is not capable of development for six grouped dwellings. Therefore, even if the front courtyards of the grouped dwellings facing Nova Lane were removed, the front stairway structures of the existing building were retained and the car parking located at the rear of the building, the development application would be required to be refused under cl 19(2) of TPS 1. The development does not conform to the Codes in relation to housing density.
37 It is strictly unnecessary to explore the remaining three issues in light of the Tribunal's findings in relation to the housing density issue. However, as further development proposals may be made in relation to the site and as the other issues were the subject of evidence and submission, the Tribunal will address them.
Building height
38 The proposed building at the rear of the site has a maximum height of up to 8.6 metres, whereas the Acceptable Development provision in cl 3.7.1 A1 of the Codes involves a height of 7.0 metres to the top of the external wall in the case of a concealed wall. The highest portion of the building relative to natural ground level is the front or southern part of the upper level. As noted earlier, this part of the building is a full three storeys. An element of the corresponding Performance Criteria in cl 3.7.1 P1 is "building height consistent with the desired height of buildings in the locality". The desired height of buildings in the locality is specified in the Knutsford Locality Statement as "a general height limit of two storeys (including loft) can be considered provided the second storey (including loft) is generally set back a minimum of 6.0 metres from the street and the amenity of the area is protected in terms of privacy, scale and bulk". The development does not satisfy the Performance Criteria, as it will appear to be three storeys in height when viewed from Nova Lane, both directly in front of the site and from the south-east where the full 8.6 metre height of the eastern wall would be apparent.
39 Mr Turnbull contends that the proposed building height is acceptable for four reasons.
40 First, Mr Turnbull notes that the adjoining neighbour to the east supports the proposed development. However, as the President held in Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [30]:
(Page 15)
- "[T]he fact that no objection is made by the present owner of a property which is objectively, detrimentally affected by a proposed development, while potentially a relevant consideration, does not obviate planning consideration of the impact and, where appropriate, refusal of an application in consequence of the impact. Planning law 'is concerned with the use of land – and not with the identity of the user': per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. The identity of those who undertake development and those who are affected by it are likely to change during the lifetime of a development. The task of a planning consent authority, including the Tribunal on review, is to consider the objective impact of a development on the existing and, where relevant, likely future amenity of the locality, including impact on adjoining or adjacent properties, irrespective of current ownership arrangements."
41 In this case, the central part of the eastern façade of the proposed new building would present with considerable bulk and scale to the eastern adjoining property. Furthermore, the building would present as three storeys in height when viewed from the lane and from properties to the east and north-east.
42 Second, Mr Turnbull notes that the proposed building height is "significantly lower than the existing building height". However, this is only because the existing building has a pitched roof and the site falls so that it is generally lower in the area where the new building is proposed. The proposed wall height is up to 0.8 metre higher than the wall height of the existing building. More fundamentally, whereas the existing building presents as a two storey building, consistently with the desired height of buildings in the Knutsford Locality Statement, the proposed building will present as three storeys when viewed from the public domain and from properties to the east and north-east.
43 Third, Mr Turnbull notes that, if modifications were made to the kitchen window on the eastern façade of the proposed building, the set back of the eastern wall would meet the Acceptable Development provision in cl 3.3.1 A1 of the Codes. However, compliance with one element of the Codes does not obviate the need to comply with another relevant element of the Codes. Clause 19(2) of the Scheme relevantly requires that the development conform to each relevant provision of the Codes.
(Page 16)
44 Fourth, Mr Turnbull notes that the third level would be located centrally within the building and set back approximately 9.5 metres from the Nova Lane boundary. However, the building would clearly present as a three storey building.
45 For these reasons, the development does not conform to the Codes in relation to building height. As Mr Bain observed, a development which incorporates a third level of accommodation within the roof form may well satisfy the Performance Criteria in cl 3.7.1 P1 of the Codes. Indeed, such a form of development may well comply with the Acceptable Development provision.
Streetscape
46 For reasons set out earlier in relation to housing density, the proposed development would have an adverse impact on the streetscape of Knutsford Street, because of the demolition of an integral element of the building and the erection of carports which would obscure large parts of the building. If the development had conformed to the Codes and was therefore capable of approval under the Scheme, it would have been refused in the exercise of discretion under cl 38(5) having regard to the orderly and proper planning of the locality (par (g)) and the conservation of the amenities of the locality (par (h)), both of which include the avoidance of adverse streetscape impact.
Privacy impact
47 For reasons set out earlier in relation to housing density, the proposed development would have an adverse privacy impact in relation to the rear verandah and garden area of No 14 Knutsford Street. Although the courtyards of the proposed grouped dwellings at the rear of the site would be set back a minimum of 9.5 metres from the private open space of No 14 Knutsford Street, the courtyards are oriented directly to No 14 Knutsford Street, are elevated and are likely to be extensively used. Although the Council did not contend that privacy is a determinative issue in this review, the Tribunal's task is to produce the correct and preferable decision: State Administrative Tribunal Act 2004 (WA) s 27(2). The Tribunal considers that, in the circumstances of this case, privacy impact is a determinative consideration.
(Page 17)
Conclusion
48 The proposed development is incapable of approval, because of the housing density proposed. The Tribunal considers that if the proposed development had not involved:
• elevated outdoor living areas oriented to the private open space of No 14 Knutsford Street;
• demolition of the front stairway structures which are an essential and integral element of the walk-up residential flat building; and
• erection of carports in the front setback area,
then:
• development would be permitted to R40 standards as the existing building would be retained and the criteria specified in the Knutsford Locality Plan would be satisfied for the purposes of cl 20(4)(c) of TPS 1; and
• an increase in the permitted dwelling density by up to 50% to R60 would be granted as the proposed development would conserve an existing building worthy of retention.
49 However, even at a housing density of R60, the proposed development of six grouped dwellings is incapable of approval under the Scheme and the Codes. The fact that there are presently six dwellings on the site and that the development application proposes six dwellings does not have any bearing on the determination of whether the proposed dwelling density is capable of approval under the Scheme and Codes. However, it should be noted that, because the existing dwellings are multiple dwellings, the existing development satisfies the specific average site area for a multiple dwelling in the R60 code of 166 square metres. It does not, however, satisfy the average site area for a grouped dwelling in the R60 code of 180 square metres and five of the six grouped dwellings do not satisfy the minimum site area of 160 square metres.
50 The Tribunal has also determined that the development does not conform to the Codes in relation to building height. The proposed building exceeds the Acceptable Development height provision and does not conform to the Performance Criteria as its height is not consistent with the desired height of buildings in the locality, namely, a general height
(Page 18)
- limit of two storeys. The building would clearly present as a three storey building when viewed from Nova Lane directly in front of the site and from the south-east and when viewed from residential properties to the east and north-east.
51 The Tribunal has also determined that, if the application were capable of approval under the Scheme, it would have been refused approval in the exercise of discretion under cl 38(5), because it would have an adverse impact on streetscape, by reason of the demolition of the stairway structures and erection of carports in the setback area, and on privacy of the rear verandah and garden of No 14 Knutsford Street.
52 It follows that the application for review should be dismissed and the decision of the Town to refuse development approval should be affirmed.
53 However, the Tribunal notes that the site is suitable for redevelopment in accordance with the R60 standards if the residential flat building, including the stairway elements, is retained, car parking structures are located at the rear of the building, outdoor living areas are not oriented at an elevated level towards No 14 Knutsford Street and the development were otherwise in conformity with the Codes and generally consistent with the applicable zoning and planning provisions. Redevelopment in accordance with the R60 standards would allow a maximum of five grouped dwellings on the site.
54 An alternative form of development which could be achieved in density terms, if the Council exercises discretion under cl 3.1.3 A3 of the Codes to permit the minimum site area for a Single Bedroom Dwelling to be reduced by up to one-third, is for the northernmost four units to be restored and to remain (or be converted if they contain more than one bedroom into) Single Bedroom Dwellings, for the southernmost two units to be converted into a grouped dwelling and for a building to be erected at the rear of the site comprising two grouped dwellings. This would enable a total of seven dwellings (four Single Bedroom Dwellings and three grouped dwellings). A further alternative which could be achieved in density terms, if the Council exercises discretion in relation to Single Bedroom Dwellings and also discretion under cl 3.1.3 of the Codes to allow up to a 5% variation in average site area for grouped dwellings, is for each of the six units to be restored and to remain (or be converted into) Single Bedroom Dwellings and for two grouped dwellings with an average site area of 173.5 square metres to be erected at the rear. This would enable a total of eight dwellings (six Single Bedroom Dwellings and two grouped dwellings).
(Page 19)
55 The benefits of either and more so of the second alternative form of development would include that:
• the residential flat building would be retained not only in form but also substantially or wholly in function;
• the northern stairway structure or both stairway structures would continue to serve their historic function of providing walk-up access to flats;
• the development would "cater for the diversity of demands, interests and lifestyles by … [providing] a wide range of choices in housing" (TPS 1 cl 6(3)(a)); and
• the development would incorporate four or six more affordable housing units than would be the case with five grouped dwellings.
56 However, any of the three forms of development would require the accommodation of six car parking bays on site to serve the front dwellings (one space for each Single Bedroom Dwelling and two spaces for any grouped dwelling). If carports or garages were proposed, these must be located behind the existing building. Vehicles accommodated behind the building would need to be able to turn around on site. However, it would be acceptable to remove the three sections of low street front walls to be able to accommodate one vehicle for each of the upper units in front of the building, provided that there is no carport structure. This would still enable two on-street car bays to be retained for visitors to the development, and residents and visitors to the street generally, directly in front of the two stairway structures.
Orders
57 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent to refuse development approval for the conversion of six multiple dwellings into three grouped dwellings and for the erection of a second building comprising three grouped dwellings at Nos 16 18 Knutsford Street, North Perth is affirmed.
(Page 20)
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
2
4
5