PRIMA DEVELOPMENTS PTY LTD and CITY OF STIRLING
[2011] WASAT 74
•4 MAY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PRIMA DEVELOPMENTS PTY LTD and CITY OF STIRLING [2011] WASAT 74
MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: 15 FEBRUARY 2011
DELIVERED : 4 MAY 2011
FILE NO/S: DR 344 of 2010
BETWEEN: PRIMA DEVELOPMENTS PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Development application - Dwelling and café - Refusal - Structure plan designates site as café/deli - Whether two storey dwelling is incidental to use of café/deli - Whether development is visually or physically integrated into surrounding open space - Whether development complies with estate design guidelines
Legislation:
City of Stirling District Planning Scheme No 2
City of Stirling Town Planning Scheme No 3, cl 4.2.3, cl 4.3, cl 6A.3, cl 6A.15, cl 16A.15.1, Sch 10
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review dismissed
Development approval refused
Category: B
Representation:
Counsel:
Applicant: Mr TW Teo (Representative)
Respondent: Mr L James
Solicitors:
Applicant: Prima Developments Pty Ltd
Respondent: Kott Gunning
Case(s) referred to in decision(s):
Teo and City of Stirling [2008] WASAT 270
Teo and City of Stirling [2008] WASAT 55
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the City of Stirling's decision to refuse a development application for a dwelling and café at No 21 (Lot 9000) Roselea Boulevard, Stirling.
The proposed development consisted of a two storey dwelling and a single storey café with associated car parking on a site with a designated use of 'café/deli' on the Roselea, Stirling Structure Plan. The site is surrounded by public open space and abuts a permanent lake.
Previous Tribunal decisions have found that low density residential use of the site was not permissible under the agreed structure plan and subsequently, that the designation of the site should not be amended from 'café/deli' to low density residential use.
The City of Stirling was concerned that the residential component of the proposal was not incidental to the use of café/deli and that the built form did not visually or physically integrate with the surrounding open space and finally that the proposal did not comply with the Roselea Estate Design Guidelines in relation to building height and roof form.
The applicant was of the view that as a previous Tribunal decision referred to the possibility of residential use, this proposal should be approved.
The Tribunal agreed with the respondent's planning expert and found that the proposed separate two storey dwelling would visually dominate the single storey café and was not incidental to the use of the site as a café/deli and therefore not considered to be generally in accordance with the Roselea, Stirling Structure Plan.
The application for review was therefore dismissed and the decision of the City of Stirling to refuse the proposed development affirmed.
Introduction
These proceedings involve an application brought by Mr Tong Woon Teo on behalf of Prima Developments Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for the review of the decision of the City of Stirling (respondent or City or Council) made on 21 September 2010 to refuse development approval for a dwelling and café at No 21 (Lot 9000) Roselea Boulevard, Stirling (site).
Site and locality
The subject site has an irregular shape with a western boundary fronting Roselea Boulevard, an eastern boundary adjacent to an existing lake and both the northern and southern boundaries abutting public open space. The site has an area of 1,597 square metres which includes a constructed timber boardwalk that extends into the lake. The site is currently vacant besides the boardwalk and a gravel parking area, and appears as part of the public open space as there are no existing fences defining the site boundaries.
The site is located within an area commonly referred to as the Roselea Estate. Most lots within the Roselea Estate and within the vicinity of the site have been developed as two storey single residences.
Planning framework
The site is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and is zoned 'Development' under the City of Stirling Town Planning Scheme No 3 (TPS 3 or Scheme).
Clause 4.2.3 of TPS 3 states the objectives of the Development Zone as follows:
a)To provide for coordinated development through the application of a comprehensive structure plan to guide subdivision and development.
b)To avoid the development of land for purposes likely to compromise its future development for purposes, or in a manner likely to detract from the amenity or integrity of the area.
Clause 4.3 contains a zoning table which indicates the permissibility of uses in the different zones. With regard to the Development Zone for all use classes, there is a note which states that 'Development and use of land is to be in accordance with an approved Structure Plan prepared and adopted under part 6A'.
Clause 6A.3 refers to subdivision and development in Development Areas as follows:
6A.3.1The development of land within a Development Area is to comply with Schedule 10.
6A.3.2The subdivision and development of land within a Development Area is to be generally in accordance with any structure plan that applies to that land.
The subject site is located within the Roselea, Stirling Structure Plan. Sch 10 of TPS 3 describes the purpose of the Roselea Structure Plan as '[t]o facilitate development of low to medium residential lots' and its requirements are '[a]s per adopted Structure Plan'.
The Roselea, Stirling Structure Plan was adopted under the City of Stirling District Planning Scheme No 2 (DPS 2). TPS 3 was gazetted on 6 August 2010. Clause 6A.15 of TPS 3 refers to existing approved structure plans and states specifically in cl 6A.15.1:
Any Structure Plan or Outline Development Plan duly approved by the Council and the Commission under the provisions of District Planning Scheme No. 2, is to have the full force and effects as if it were approved as a Structure Plan under the Scheme.
The Roselea, Stirling Structure Plan designates the use of the subject site as 'Future Café' and refers to a 'café/deli site' of 1,597 square metres in the public open space schedule.
Background
In 2008, Mr Teo made an application to review a decision by the respondent to refuse to amend the structure plan relating to the subject site to enable low density residential use of the site.
The parties identified as a preliminary issue whether low density residential use of the site was permissible under the existing planning framework. This preliminary issue was determined by the Tribunal in a decision delivered on 7 March 2008: Teo and City of Stirling [2008] WASAT 55 (WASAT 55).
In WASAT 55 from [8] to [39], the Tribunal set out the history of the structure planning of the precinct in which the subject site is located and found at [36] that:
It is clear that the 'café/deli site' referred to in the public open space schedule is the site that is the subject of these proceedings, because the site has an area of 1597 square metres, is the only 'café/deli site' referred to in the Agreed Structure Plan, as amended in 2001, and is in the location superimposed with the words 'FUTURE CAFÉ' on the 2004 plan.
With specific regard to the definition of the words 'café/deli', the Tribunal found in WASAT 55 at [48]:
The designation 'café/deli' in the Agreed Structure Plan, as amended in 2001 and as further amended in 2004, therefore means a place where coffee and light refreshments are served and a small local shop selling a range of goods for domestic consumption. The site is intended by the Agreed Structure Plan to meet the immediate retail needs of the resident population of the Precinct in terms of a café and deli.
Relevantly, in WASAT 55 at [50], the Tribunal stated that:
The determination of whether the proposed development of land within the Precinct is 'generally in accordance with' the Agreed Structure Plan involves an assessment of fact and degree, in a town planning context. Determined in that context, low density residential use of the site is not generally in accordance with the Agreed Structure Plan which identifies the site as a place where coffee and light refreshments are served and a small local shop selling a range of goods for domestic consumption, for the immediate retail needs of the resident population. Low density residential use is fundamentally different to café/deli use. Furthermore, low density residential use of the site would deny the resident population of the Precinct access to a café and deli to meet their immediate retail needs within the Precinct, because the site is the only land in the Precinct identified for café/deli use in the Agreed Structure Plan. As noted earlier, the development of the Precinct has been planned since 1999/2000 on the basis that the resident population would be able to satisfy their immediate retail needs in a facility adjoining the lake.
Finally, in WASAT 55 at [71], the Tribunal concluded:
The Tribunal has determined that low density residential use of the site is not permissible under the existing planning framework. The Agreed Structure Plan, as amended in 2001 and as further amended in 2004, identifies the site as 'café/deli' and requires a pedestrian access easement through the site to connect pathways in public open space to the north and south of the site. Low density residential use of the site is not 'generally in accordance with' the designation of the site as 'café/deli' in the Agreed Structure Plan, and is not, therefore, permissible.
The Tribunal then considered the application to amend the agreed structure plan by deleting the designation 'café/deli' from the site and replacing it with the designation 'low density residential'. The matter was determined by the Tribunal in a decision delivered on 19 November 2008: Teo and City of Stirling [2008] WASAT 270 (WASAT 270).
The Tribunal's conclusion at [59] to [65] is as follows:
The structure planning for the Jones Street Precinct, subsequently developed as Roselea Estate, initially identified the location of the site as public open space. Since the 2001 amendments to the structure plan the site has been designated for a café/deli, has not been required for public open space but has been shown as having an easement for public access across the site to join open space areas adjoining to the north and the south.
The site became Lot 9000 in 2006 without any easement being created or design guidelines being in place. It was acquired by the applicant's company. The applicant is wrong in his argument that the planning controls of Sch 12 of DPS 2 and the associated Agreed Structure Plan should not now apply because of the manner of the creation of Lot 9000 and its subsequent sale. The planning controls run with the land on change of ownership.
The applicant has argued that a café/deli would be economically unviable on the site and therefore the designation should be changed to low density residential to allow for an economic use consistent with the remainder of Roselea Estate. He said that as part of a development approval, consideration would be given to ceding land containing the existing boardwalk infrastructure for public open space.
At the hearing[,] substantiated evidence was not presented to the Tribunal that a café/deli development on the site would be economically unviable. The evidence was that the reports that led to these uses being included in the structure planning of the estate and located on the site had not yet been displaced by any other tested document of an appropriate standard.
The Tribunal agrees with the applicant that it would be inequitable if the expectation of at least some of the neighbours was to be satisfied and the applicant was obliged to maintain the site as open space and allow access to the general public. It appears that the applicant would be able to take steps to exclude trespassers until such time as there is an appropriate agreement with the City to allow access.
The Tribunal has found that the structure planning has consistently identified that a café/deli be provided to cater for the immediate needs of the population of the precinct. That need appears to remain and the uses are an expectation of the residents who bought in to the precinct. The Tribunal has concluded that the removal of the designation of the site for use as a café/deli and the removal of the endorsement on the map of the Agreed Structure Plan cannot be supported. It follows that the designation of the site for development as low density residential also cannot be supported.
The Tribunal has therefore decided to refuse the application for review.
Relevantly for this matter, the Tribunal included the following at [58] of WASAT 270:
The Tribunal notes that the 2006 application which included a mix of café, deli and residential was withdrawn and never considered by the Council. It would comment that a development that included a café and deli to meet the immediate retail needs of resident population and also a house, perhaps in a two storey building, and including access across the site adjacent to the lake, might generally be in accordance with the [A]greed [S]tructure [P]lan. How this would visually and physically integrate with the surrounding open space would be a consideration. It must be added that the parties did not make submissions on this form of development and of course it would have to be the subject of an application to the Council for consideration.
The applicant submitted the proposed development for consideration by the respondent in March 2010.
Proposed development
The proposed development consists of two separate buildings, a dwelling and a café with associated on-site carparking. The proposal also includes a public open space contribution in excess of 160 square metres in the form of the eastern portion of the site abutting the lake and containing the existing boardwalk and rotunda space.
The proposed dwelling is two storeys with a ground floor area of 178.5 square metres containing three bedrooms, study, home entertainment room, wc, bathroom, laundry, double garage and fenced private open space to the east. The first floor has an area of 107.6 square metres and contains the master bedroom with walk-in-robe and en suite and an open plan kitchen/dining/living area opening on to a balcony of 10.2 square metres.
The proposed café is single storey with an internal area of 120.5 square metres opening on to a deck overlooking the lake. A kitchen and two toilets are shown on the plan as well as fourteen carparking bays.
Both buildings, the dwelling and café, are built from similar materials which include rendered brickwork, stone and timber cladding, aluminium framed windows and a flat metal deck roof with a 3 degree pitch.
Council's decision
The Council advertised the development application and received 38 submissions, none of which were supportive. The development application was the subject of a report by a council officer to the Council meeting on 21 September 2010, in which the officer recommended conditional approval. The Council resolved to refuse the application for the following three reasons:
1.Committee forms the opinion that low density residential use of this site is not in accordance with the designation of the site as 'café/deli' in the agreed structure plan and is not therefore permissible.
2.The application also makes no provision for the use 'deli' and does not visually or physically integrate with the surrounding open space.
3.It is also considered that the proposed development diverts significantly from the Roselea Estate Design Guidelines in relation to building height and roof form.
The issues
It was agreed by the parties that the following three issues arise for determination in this review:
1)Whether the low density residential use of this site is not in accordance with the designation of the site as 'café/deli' in the agreed Structure Plan and is not therefore permissible. More specifically, whether the two storey dwelling shown in the development application is incidental to the use of the site for a café or alternatively café/deli.
2)Whether the application should be rejected as making no provision for the use 'deli' and is not visually or physically integrated with the surrounding open space.
3)Whether the proposed development should not be approved because it diverts significantly from the Roselea Estate Design Guidelines in relation to building height and roof form.
Whether the two storey dwelling is incidental to the use of café/deli
Both previous Tribunal decisions, WASAT 55 and WASAT 270, found that the designation of the subject site is 'café/deli' and that low density residential use was not suitable.
At [50] of WASAT 55, the Tribunal stated that:
The determination of whether the proposed development of land within the Precinct is 'generally in accordance with' the Agreed Structure Plan involves an assessment of fact and degree, in a town planning context. …
And at [58] of WASAT 270, the Tribunal commented 'that a development that included a café and deli to meet the immediate retail needs of resident population and also a house, perhaps in a two storey building, and including access across the site adjacent to the lake, might be generally in accordance with the agreed structure plan'.
The applicant has proposed a development incorporating a single storey café with fourteen carparking bays and a two storey dwelling with associated outdoor space. The café and carparking occupy approximately 60% of the area of the site. More than 10% of the site is to be ceded to the City in the form of the existing boardwalk and rotunda space immediately abutting the lake. This would allow for permanent public access along the edge of the lake. The applicant also agreed to a condition requiring a 'deli' component to the café.
It was Mr Teo's view, that in light of [58] of WASAT 270 and the planning officer's report which included a recommendation for conditional approval of the proposed development, that 'the house component within that development is not outside of the guidelines'.
It was the evidence of Mr Allerding, a consultant town planner called by the respondent, that residential use on this site was possible but the 'residential use must naturally be subordinate or incidental to the use of a café/deli'.
In his witness statement, Mr Allerding considered the physical form of the development and concluded that visually the two storey dwelling 'would physically dominate the proposed café in its built form'. This is because 'its floor area is larger, its height is significantly taller and its frontage[,] when viewed from the lake and from Roselea Boulevard[,] is wider'. He concluded that 'from a visual perspective, the café would appear as the subordinate activity to the dwelling'.
During the hearing, Mr Teo put to Mr Allerding that by occupying approximately 60% of the area of the site (built form plus carparking), the proposed café was in fact the predominant use of the site. Mr Allerding responded that the current proposal was for a large residential development with a small separated café/deli which was not integrated with the surrounding open space. It was Mr Allerding's suggestion that a residential component above the café would be a preferable arrangement as the site is a café/deli site and 'it needs to be a dwelling that is mindful of its ultimate purpose which is for a café/deli'.
In his witness statement, Mr Allerding referred to [58] of WASAT 270 and suggested that a suitable configuration for residential use on the site could be similar to the requirements for residential dwellings in commercial zones which do not permit residential use on the ground floor, while noting that the site is not zoned commercial. Mr Teo suggested that this would normally apply to a main street frontage and not to a site such as the subject site.
Mr Teo asked Mr Allerding whether he thought the site was the appropriate location for a café as it was 'in the middle of a residential estate' and Mr Allerding replied that it would be 'fantastic', while agreeing that there would be some negative amenities, including deliveries. Mr Teo also expressed his view that if the café was larger it would be difficult to fit the required carparking bays on the site.
It is the Tribunal's view that the scale and location of the proposed dwelling is inconsistent with the designation of the use as café/deli which, at its highest, would contemplate a residential use component as incidental to the café/deli use.
The Tribunal agrees with Mr Allerding that the proposed separate two storey dwelling will visually dominate the single storey café and finds that it is not incidental to the use of the site as a café/deli and therefore not considered to be generally in accordance with the Roselea, Stirling Structure Plan.
With regard to WASAT 270, the Tribunal notes that at [51] reference was made to the reasonable expectation that a two storey building on the site would be possible and, further, at [58], that 'a development that included a café and deli to meet the needs of resident population and also a house, perhaps in a two storey building, and including access across the site adjacent to the lake, might be generally in accordance with the agreed structure plan'.
The Tribunal has determined that the proposed two storey dwelling is not incidental to the use of café/deli, although a two storey building with a downstairs use of café/deli and an upstairs incidental residential use may be consistent with the agreed structure plan and may be what was contemplated by the Tribunal in WASAT 270.
In this proposal, the applicant has provided a café and deli as well as access across the site adjacent to the lake but the built form is such that the dwelling will appear to be a low density residence which the Tribunal has determined in previous decisions is not in accordance with the structure plan.
Whether the development is visually or physically integrated into the surrounding open space
It was agreed by the parties that the 'deli' use of the site could be dealt with by way of a condition which left the remaining part of Issue 2 being the visual and physical integration of the proposed development with the surrounding open space.
Mr Allerding argued that the size and form of the proposed dwelling prevented the development from visually and physically integrating with the surrounding open space primarily because of the need for fencing to private open space associated with the proposed dwelling. In response, the Tribunal notes that the applicant has reduced the overall amount of fencing and much of the remaining fencing is below 1,500 millimetres high and visually open in style.
Mr Allerding was referring to WASAT 270 when discussing the issue of integration but there appears to be no specific requirement for the proposal to be visually or physically integrated with the surrounding open space under TPS 3. It should be noted that both WASAT 55 and WASAT 270 were delivered prior to the gazettal of TPS 3. The Tribunal is of the opinion that it is not necessary to consider in detail the appropriate level of visual or physical integration of the development with the surrounding open space, but would note that the ceding of the land containing the boardwalk adjacent to the lake and the provision of visually open fencing enhances the level of integration.
Whether the development complies with the Roselea Estate Design Guidelines in relation to building height and roof form
It was the evidence of Mr Allerding that the Roselea Estate Design Guidelines (design guidelines) are for residential development and do not strictly apply to the proposed development as it is a non-residential use. Mr Allerding was of the view that 'in the absence of any other development standards, they provide a reasonable basis upon which the scale and use of materials might apply in the Roselea Estate to retain a high standard that is compatible with existing development'. Specifically, in relation to the skillion roof form of the dwelling, Mr Allerding was of the opinion that 'as a non-residential use, there appears to be some reasonable capacity to allow some flexibility to the standards to fairly distinguish this form of non-residential development against other residential dwellings in the Estate'.
It was Mr Teo's evidence that the current building height and roof form was appropriate as it reduced massing and would impact less on the views of residents.
The Tribunal agrees with Mr Allerding that the design guidelines do not apply to nonresidential development except as general guidance regarding scale and materials. Specifically in relation to the building height and roof form, the Tribunal is of the view that for a non-residential use such as a café/deli it would not be unreasonable to expect a built form somewhat different to the surrounding low density residential buildings. In this case, the Tribunal agrees with Mr Teo that the proposed roof form does reduce the potential impact on the views of neighbouring residents.
Conclusion
The Tribunal has found that it is not necessary to consider in detail the appropriate level of visual or physical integration of the development with the surrounding open space but notes that the ceding of the land containing the boardwalk adjacent to the lake and the provision of visually open fencing enhances the level of integration.
With regard to the issue of compliance with the design guidelines, the Tribunal has found that the design guidelines do not apply to nonresidential development except in the form of general guidance. In relation to the building height and roof form, the Tribunal has determined that for a non-residential use such as a café/deli it would not be unreasonable to expect a built form somewhat different to the surrounding low density residential buildings.
Finally, in regard to the issue of whether the dwelling is incidental to the use of café/deli as designated by the Roselea, Stirling Structure Plan, the Tribunal has found that the separate two storey dwelling would visually dominate the single storey café and therefore not be incidental to the use of café/deli. The dwelling will appear to be a low density residence which is not considered to be generally in accordance with the Roselea, Stirling Structure Plan.
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 made on 21 September 2010 to refuse development approval for a dwelling and café at No 21 (Lot 9000) Roselea Boulevard, Stirling is affirmed.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, SENIOR SESSIONAL MEMBER
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