RATTIGAN and TOWN OF COTTESLOE
[2008] WASAT 97
•12 MAY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RATTIGAN and TOWN OF COTTESLOE [2008] WASAT 97
MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)
HEARD: 20 FEBRUARY 2008
DELIVERED : 12 MAY 2008
FILE NO/S: DR 23 of 2008
BETWEEN: PETER JOHN RATTIGAN
Applicant
AND
TOWN OF COTTESLOE
Respondent
Catchwords:
Town planning - Pedestrian way/walkway - Whether to use steps or ramps - Possible noise of wheelie bins/gatehouse - Streetscape - Need for weather protection - Over design or modest design
Legislation:
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2002), cl 3.2, cl 3.6
Town of Cottesloe Town Planning Scheme No 2
Result:
The application for review is allowed in part
Category: B
Representation:
Counsel:
Applicant: Mr E Drewett (Acting as agent - initial submission)
Respondent: Mr A Jackson (Acting as agent - response to the applicant's submission)
Solicitors:
Applicant: Self-represented
Respondent: Town of Cottesloe
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for a review of two conditions attached to a development application for alterations and additions to an existing dwelling at Lot 2 (No 9) Grant Street, Cottesloe.
Condition (e) required the redesign of a walkway replacing the proposed stair with a ramp or a series of small steps. Condition (g) required the deletion of a gatehouse and that any gates are of an open aspect design.
The two issues were whether the proposed walkway and the proposed gatehouse complied with the planning framework.
The Tribunal found that the proposed walkway did comply with the planning framework. The Tribunal determined that the condition should be deleted but replaced with a condition requiring retention of fill on the development site.
The Tribunal found that the proposed gatehouse did comply with the planning framework and determined that condition (g) should be varied by removing the requirement to delete the gatehouse.
Introduction
These proceedings involve an application brought by Mr Peter Rattigan (applicant or Mr Rattigan) on 18 January 2008 for a review of the decision of the Town of Cottesloe (respondent or Council) made on 17 December 2007 to grant conditional approval for alterations to an existing dwelling at Lot 2 (No 9) Grant Street, Cottesloe (subject land or site). The alterations included a walkway and a gate house.
The applicant seeks to delete two of the conditions. One condition required a redesign of the walkway and the other condition required the deletion of the gatehouse.
The applicant lodged the proposal in July 2007. The respondent sought and obtained opinions from the two adjoining landowners. The respondent considered the proposal and the feedback from the neighbours at a meeting on 27 August 2007. The decision was deferred at the request of the applicant.
In the response to the officer's report to Council for the August meeting, the applicant submitted a letter and amended plans on 15 November 2007 showing changes to the walkway levels and a reduction in the height of the gateway.
Nevertheless the respondent decided that the amendments were not acceptable and issued an approval with the two conditions that are the subject of the review.
Site and locality
The battleaxe shaped site is a rear survey strata lot and contains an existing two storey dwelling. The battleaxe leg that provides frontage to Grant Street is 1.5 metres wide and is approximately 24.9 metres long. The access leg was, at the time of a site viewing with the applicant and respondent, fenced off. There are two storey neighbouring dwellings on either side of the access leg. The drawings indicate there is a 1.6 metre fall from the lower floor level of the applicant's dwelling to the footpath level at Grant Street.
The site has frontage to a rear right of way and adjoins a park to the west. Pedestrian access at the time of the viewing was available from the right of way and the park.
The Tribunal had the benefit of a view of the site and locality in the company of representatives of the parties.
Planning framework
The site is zoned residential in the respondent's Town of Cottesloe Town Planning Scheme No 2 (TPS 2).
There is limited planning framework with direct relevance to this review. The respondent refers to a Fencing Local Law but acknowledges that the local law refers to side and front fences and does not deal with access legs.
The Residential Design Codes of Western Australia (2002) (R Codes) are incorporated into TPS 2. Two sections of the R Codes have some relevance to this review. Clause 3.6.1 of the R Codes deals with excavation or fill. Some fill is proposed for the walkway.
Element 2 of the R Codes refers to gatehouses in the white commentary pages attached to the R Codes. However, there is no direct reference to gate houses in cl 3.2.1 - cl 3.2.9 which describe the streetscape requirements.
Proposed development
The applicant's proposal comprised various minor additions and alterations to an existing two storey dwelling. The development that is subject to the contested conditions involves a new walkway and an associated gatehouse.
The walkway is 1.5 metres wide and approximately 25 metres long and will provide the only direct pedestrian access between the dwelling and Grant Street. The proposed gateway is setback 2.45 metres from the street and is set 357 millimetres above footpath level via two steps. The gatehouse is approximately 2.3 metres high and 3.6 metres long across the full 1.5 metres width of the walkway. A manually operated gate is proposed at the street end of the gatehouse and a controlled access (security) gate is proposed at the other end. The walkway is flat for 2.85 metres on the house side of the gateway and the applicant proposed a total of seven steps over a distance of 3.6 metres. The proposed walkway is then flat for the remaining distance to the dwelling.
The proposed walk way requires various amounts of fill ranging up to approximately 1.2 metres. The neighbouring dwellings have existing boundary walls on either side of the walkway. These walls will be retained. A boundary fence is proposed on the east boundary to match the height of the existing boundary wall and it will extend to the northern (street) end of the gate house. The steps and paving levels are proposed to be at least 1.65 metres below the top of existing boundary walls and the proposed fence.
Council's decision
The development application was submitted in July 2007 with revised plans submitted in November 2007. The respondent approved the revised plans with seven conditions: (a) - (g). The two conditions, subject of this review are:
Condition (e) required:
"The walkway being ramped or designed as a series of long, gentle steps with no section being raised more than 0.5m above existing levels, to the satisfaction of Manager Development Services with the details being included in the Building Licence Plans".
Condition (g) required:
"The gatehouse is deleted from this approval and any gate to the walkway shall be of an open-aspect metal-rung design to the satisfaction of the Manager Development Services."
The issues
The following two issues arise for determination in the review:
1)Whether the proposed walkway is consistent with the planning framework; and
2)Whether the proposed gatehouse is consistent with planning framework.
The two issues are independent of each other.
The Tribunal will address each issue in turn.
Whether the proposed walkway is consistent with the planning framework
Mr Rattigan's evidence includes the statement that the proposed walkway "complies with all relevant codes". The statement is not expanded and the Tribunal formed the opinion that reference appears to be to the R Codes. The respondent formed a similar opinion and in a written response to the applicant's evidence stated:
"The relevance of the Residential Design Codes in respect of the walkway, as proposed, is not in dispute and is not relied upon in the Respondent's Statement of Evidence."
Unfortunately, the respondent has not described any breach of any planning framework that has direct relevance to the proposed walkway.
Mr Rattigan states that there will be no overlooking into the neighbours' properties from the walkway or the steps of the walkway.
From the respondent's evidence and also from the reports to the Council, the respondent's concern appears to be that the steps are not as safe as a ramp especially at night and when used by young children or older persons.
While the statement is probably correct, the implied corollary that the proposed steps are not safe and not acceptable, does not follow. Given the large numbers of external steps that are used at night by young children and older persons in Perth, the Tribunal can not accept that the proposed stairs are not acceptable in Cottesloe, especially when the respondent has not supported its position with any planning law or local policy requirements.
The respondent also argues that the steps will make it difficult for the applicant to use the walkway for the wheelie (rubbish) bins and that the resultant noise may disturb the neighbours. The applicant disagrees with the noise argument and suggested that the care necessary to negotiate the steps would lessen the noise and that the transit time down the steps was unlikely to exceed 15 seconds. While there may be a marginal increase in noise, the Tribunal finds that the respondent has not demonstrated that the marginal increase in noise represents a loss of amenity. Furthermore, the walkway is currently unusable and obviously has not been used for some time. It appears the applicant manages to get his wheelie bin to the street for collection. The applicant has not commented on any existing difficulty and a site viewing indicated that a path in the adjoining park and a rear right of way (the bins are currently located at the rear of the dwelling adjoining the right of way) may provide a reasonable alternative to the proposed walkway.
However, in the reports to Council the respondent has raised one relevant concern: that being that the levels of the walkway should not impact on the adjoining neighbours. Despite the respondent's apparent agreement with the applicant's statement that the walkway complies with the R Codes, the Tribunal finds that the proposed walkway should be considered within the context of the sitework requirements of the R Codes. In note (ii) to cl 3.6.1 Excavation or Fill, the R Codes state that where a retaining wall (and by implication: fill) exceeds 0.5 metres, the retained area is to be screened to prevent views of neighbouring property.
Further, cl 3.6 requires fill to be retained on the site.
In terms of privacy, the applicant has stated that there will be no overlooking of neighbouring properties from the finished levels of the walkway. On examining the elevation of the east wall and the 1.65 metre arc drawn from the step down of the boundary wall near the steps, the Tribunal is concerned that there may be a loss of privacy. The level at the top of the steps (11.672 metres) is only 1.18 metres below the lower level boundary wall. The top of the steps is just over 2 metres from the step down. Standing in the centre or the west side of the walkway it is possible that there will be a degree of overlooking. However, the loss of privacy will not be significant since the overlooking will be of a transitory nature and towards the neighbour's front yard which is partially open to the street. The planner's reports to Council have not identified this as a significant issue.
In terms of retaining, the Tribunal notes that the evidence includes a summary of the submissions from the neighbours where it was stated that the boundary walls were not designed as retaining walls. From the plans it is not clear what finished levels exist on the neighbours' sides of the boundary walls. The elevation indicates fill in some parts is 1 metre above natural ground level. However, natural ground level has limited relevance especially if levels on the other side of the boundary wall are below natural ground level; the question is whether the proposed finished levels of the walkway will result in the need to retain the fill.
The Tribunal finds the matter of fill should be addressed in a condition: either in a new or a modified condition.
Mr Rattigan also expressed concern that the wording of the condition was vague and may result in expensive and time consuming delays until the satisfaction of the Manager of Development Services was met. The Tribunal does not consider the condition to be a problem. The Manager is an employee of the respondent and furthermore the delegation of the decision making capacity from the Council to the staff should minimise delays.
In summary, the Tribunal finds that there is no planning framework that requires the walkway to be ramped or designed as a series of long, gentle steps with no section being raised more than 0.5 metres above existing levels. However, the finished levels of the walkway may require fill which will need to be retained.
Whether the proposed gatehouse is consistent with the planning framework
The applicant presented three arguments in favour of the gatehouse. These arguments relate to need; precedence and contribution to streetscape; and the lack of an adverse impact on the neighbour.
The respondent counter argues that the need does not justify the gatehouse and that the gatehouse is over designed; that it consistently rejects gatehouses in favour of maintaining an open streetscape; and that the impact on the neighbour is not in dispute and is therefore not a ground to support the proposal.
These three matters will be considered in turn.
Need
The applicant argues that for security reasons he requires a controlled security gate that will be unlocked from within the house. (The issue of the need for security is not contested.) As a consequence of the security gate he then argues that visitors will require protection from the weather and that the gatehouse provides that protection.
"Because of the necessity to maintain a locked gate at the entrance to the access way visitors will need to wait some time before they can communicate via an intercom with the residents and have the front gate unlocked. The front of the property is exposed to the full force of winter North Westerly storms … During the waiting time the visitors will need to be able to shelter from any inclement weather."
The respondent does not support the need argument putting the proposition that generally Perth's weather is mild and that the gatehouse serves little purpose when pedestrians still need to pass along the balance of the 37 metres from the street to the house without weather protection.
The respondent further argues that the gatehouse is too large and is over designed.
The Tribunal finds the applicant's argument is more convincing and that the respondent did not give sufficient weight to the reasonable consideration that the gatehouse will provide a respite from inclement weather and a sheltered position to wait while the security system is answered. Furthermore, the Tribunal does not support the respondent's argument that the structure is over designed. While it is 3.6 metres long it is only 1.5 metres wide and a minimal height. The gatehouse will be viewed in the context of two close adjoining two storey houses and a long narrow passageway to the rear dwelling. In that context it is not possible to support the respondent's argument of over design. The Tribunal finds that the proposal lies within the range of appropriate to modest and that therefore, the design is acceptable.
Impact on neighbour
The applicant reported that a tenant of the adjoining dwelling to the east consented to a viewing from the front entertainment area and that measurements were taken and that it was subsequently confirmed that the proposed gatehouse will not impede any view to the ocean from the adjoining property. The applicant also states that the level of the gatehouse is reduced from the existing ground level and that this will improve protection of privacy to the neighbour.
In response the Council submitted that:
"Any issue regarding the proposed gatehouse having an adverse impact on the neighbouring properties or interruption of views of significance is not in dispute and is not relied upon in the Respondent's (submission)."
Streetscape and precedence
There is limited planning framework on this issue. In the report to Council dated 20 August 2007 the following relevant comments were made:
"Town Planning Scheme No. 2 and the Fencing Local Law do not deal with gatehouses in any specific way; that (is), they are neither expressly provided for nor prohibited. The Residential Design Codes deal with gatehouses only in a general way in relation to fencing and streetscape. Council has no particular planning policy regarding gatehouses";
and
"Under the Streetscape Element section[,] the Codes in the explanatory (white) pages generally discourage substantial structures in the front setback area but do refer to structures which may be allowed including … appropriately scaled archways or gatehouses, in character with the streetscape. In the prescriptive (blue) pages the Codes do not mention gatehouses specifically and the particular controls cannot be extrapolated to embrace them, however, the overall Objective does provide guidance: To contribute towards attractive streetscapes and security for occupants and passersby …"
The Tribunal accepts that the above summary is a reasonable comment on the very limited planning framework associated with gatehouses.
The applicant argues that the proposed gatehouse is consistent with numerous examples of gatehouses constructed in nearby streets including a recently constructed gatehouse at No 6 Grant Street.
In the 27 August 2007 report to Council, the planning officer's statement appears to support the applicant's argument:
"It is apparent that there is ample evidence of gatehouses having been approved and built throughout the district, albeit to a small minority properties whereby they are the exception rather than the rule. However, it can be seen that they are a fairly popular design feature, offering an entry statement, weather protection, security, privacy and individuality."
However, the officer's report did note that "[i]n recent instances Council has been inclined not to support certain gatehouses".
In the respondent's submission to the Tribunal, it was stated that:
"Although no specific reason was given by the Council for its decision of 17 December 2007 to require the proposed gatehouse to be deleted from the approved plans, the Development Services Committee previously commented that a gatehouse here was not necessary or desirable."
In the respondent's response to the applicant's submission to the Tribunal, it is noted that the gatehouse at No 6 Grant Street as constructed may not have received approval. The respondent also confirmed its position on the lack of necessity for the gateway pointing out that during inclement weather pedestrians could use umbrellas or that visitors may choose to "use the laneway 'front' entrance to the dwelling which is more direct".
The Tribunal finds that the respondent's decision lacks convincing reasons and does not adequately address the merit of the proposal in terms of the need (to suggest umbrellas overcome the need for the gatehouse is not accepted), low scale and minimal impact on neighbours. The respondent has failed to present any comprehensive discussion on the impact of the gatehouse on streetscape. In this case, the Tribunal is of the opinion that the proposed gatehouse will contribute to streetscape because the gatehouse will define the entry to the rear dwelling; and that although it makes a statement, the gatehouse will not be a discordant element in the streetscape because its low scale will enable it to blend in between two existing boundary walls. Furthermore, as previously stated the Tribunal finds that the gatehouse meets a reasonable need.
Part of condition (g) deals with gates and requires them to be of an openaspect metalrung design. The submissions have not dealt with this part of condition (g). This requirement is consistent with contemporary urban and streetscape design principles and should be retained although the matter of materials (metal) is a personal preference and there is no planning framework to require metal rungs; timber slats can achieve the same objective of openness.
Conclusion
The two contested conditions are not supported by the planning framework and the proposed walkway and gatehouse are consistent with the limited planning framework.
Condition (e) concerns the walkway and in general seems to be nothing more than an expression of personal preference with no more status than an advice note. The condition makes reference to a requirement not to raise levels more than 0.5 metres above existing levels. The purpose is not clear but it may relate to the section of the R Codes dealing with fill. The drawings indicate fill will exceed 0.5 metres and this is not a problem provided the fill is retained. The Tribunal concludes that condition (e) should be deleted but replaced with a condition requiring retention of fill.
Condition (g) requires deletion of the gatehouse and requires any gates to have an openaspect design. The Tribunal finds the part of the condition that relates to the gates is acceptable and consistent with good streetscape design principles. However, the Tribunal does not support the respondent's requirement to delete the gatehouse. The Tribunal finds that there is a reasonable need for the gatehouse; that the Council has not demonstrated any negative impact on streetscape and that in this instance the gatehouse may make a positive contribution to the streetscape. The Tribunal concludes that condition (g) should be modified to reflect the findings.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.Condition (e) is deleted and replaced with the following condition:
"(e)All fill associated with the walkway is to be retained on site."
3.The gatehouse is approved and condition (g) is varied as follows:
"(g)Any gate to the walkway shall be of an openaspect design to the satisfaction of the Manager Development Services."
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER
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