RICHARDSON and CITY OF SWAN - [2024] WASAT 12

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   RICHARDSON and CITY OF SWAN [2024] WASAT 12
MEMBER:   MS R LAVERY, MEMBER
HEARD:   16 AND 17 MAY 2023
WRITTEN SUBMISSIONS DATED 2 OCTOBER 2023, 3 OCTOBER 2023 AND 29 NOVEMBER 2023

DELIVERED          :   27 FEBRUARY 2024
FILE NO/S:   DR 184 of 2021
BETWEEN:   DANIEL RICHARDSON
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Town planning - Development application - Conditions of approval relating to secondary street fence, a balcony and appurtenant French doors - State heritage significance - Contributory building in State heritage listed Guildford Historical Townsite - Local heritage significance - Whether proposed black iron spears in the Hubert Street fence should be approved - Whether the proposed rear balcony and appurtenant French doors should be approved - Cultural heritage significance considerations - Streetscape, character and amenity

Legislation:

City of Swan Local Heritage Inventory 2022
City of Swan Local Planning Scheme No. 17, cl 1.6, cl 2.1, cl 4.2.7, cl 7.2A.1
City of Swan Local Planning Strategy, cl 1.6
City of Swan Town Planning Scheme No. 9
Heritage Act 2018 (WA), s 3, s 73
Local Government (Administration) Regulations 1996 (WA), reg 10
Local Government Act 1995 (WA), s 5.25(1)(e)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1A, cl 7, cl 8(1), cl 61, cl 67(2), cl 67(2)(a), cl 67(2)(b), cl 67(2)(c), cl 67(2)(fa), cl 67(2)(g), cl 67(2)(k), cl 67(2)(l), cl 67(2)(m), cl 67(2)(n), cl 67(2)(y), cl 67(2)(zb), cl 77, cl 87, Pt 2, cl 4(3)
Planning and Development Act 2005 (WA), s 241(1)(a), s 241(2), s 242, s 252, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 27(3), s 31(1)
Town Planning and Development Act 1928 (WA) (repealed), s 8A

Result:

Part 1 of the respondent's decision is set aside and a decision is substituted that refuses the Hubert Street fence and approves the remainder of amendments dealt with by part 1
Part 2 of the decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant	:	Ms D Mrdja
Respondent	:	CA Slarke

Solicitors:

Applicant	:	Urbanista Planning
Respondent	:	McLeods

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

Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Harper Investments WA Pty Ltd and Presiding Member of the Metro Inner North Joint Development Assessment Panel [2023] WASAT 130
Kaard and City of Nedlands [2005] WASAT 2
Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634
Richardson and City of Swan [2022] WASAT 17

REASONS FOR DECISION OF THE TRIBUNAL:
Introduction

Mr Daniel Richardson (applicant) seeks review by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the City of Swan (City, Council or respondent) on 11 August 2021 to approve an application for modification to a development approval in relation to the fence to the secondary street Hubert Street (Hubert Street fence), in relation to condition 1 imposed by that approval (part 1); and to refuse to approve a balcony and appurtenant French doors to the rear of the dwelling (part 2) on No 77 (Lot 29) James Street, Guildford (subject land).
The modifications to Development Approval DA234-18 for additions to a single house in the Guildford heritage precinct include an amendment to the front roof line, the installation of 22 solar panels and seven skylights to the roof, the existing painted face brick of the house to be returned to natural brick colour, the installation of a Victorian fan gable infill with glass inlays to the façade of the house, the installation of a double-carport, pool gazebo, a balcony with appurtenant French doors to the rear and the Hubert Street fence.
While the majority of the amendments were approved by the respondent, part 1 of the Council resolution included condition 1 in relation to the proposed infill of the Hubert Street fence requiring it to be timber picket rather than black wrought iron spears as sought by the applicant, condition 2 requiring the fence to be a maximum height of 1.8 metres and condition 3 in relation to the setback to the gazebo. Conditions 2 and 3 have been addressed by the amended plans that are now the subject of this review. Part 2 of the of Council resolution has the effect of refusing to approve the proposed balcony and appurtenant French doors.
Part 3 of Council's resolution notifies the applicant that the opening for the French doors is to be constructed as a dormer window consistent with the original approval. As no s 214 Notice has been issued by the Council and the Tribunal has no review jurisdiction in relation part 3 is only advice and there is no reviewable decision under s 252(1) of the PD Act.
In these reasons, the Tribunal will firstly describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in these proceedings and address each of the issues in turn.
For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), is to set aside part 1 of the respondent's decision to grant development and substitute a decision that grants development approval with the exception of the Hubert Street fence and to refuse to grant development approval to the Hubert Street fence. In relation to the proposed balcony and appurtenant French doors, the 'correct and preferrable decision at the time of the review' is to dismiss the application and reaffirm part 2 of the decision of the respondent of 11 August 2021.

Subject Land

The subject land is more particularly described as Lot 29 on Deposited Plan P583 being the whole of the land contained in the Certificate of Title Volume 1887 Folio 139 with an area of 511m².
The site is located on the south-eastern corner of the intersection of James Street with Hubert Street, with a frontage to James Street of 15.24 metres and a secondary street frontage to Hubert Street of 33.56 metres, with no truncation at the intersection.
Current improvements to the land include the original dwelling constructed in the Gold Boom/Federation Period,[1] with substantial additions and modifications to the original structure, and a double width carport accessed from Hubert Street. There is a low-level chain-link fence predominantly concealed by hedge to James Street that returns onto Hubert Street predominantly without the hedge and becomes a higher chain-link fence with vines from approximately in line with the rear addition to the dwelling for the remaining portion of the Hubert Street boundary behind the alignment of the front setback of the dwelling from James Street.[2]
[1] Pursuant to the GM LPP, the Gold Boom/Federation period extends from 1882 – 1918.
[2] Witness Statement of Ms Bianca Sandri dated 25 November 2022 - photographs of subject land, pages 40 and 41

Proposed development

The development application proposes additions and modifications to the existing dwelling including an amendment to the front roof line, the installation of 22 solar panels and seven skylights to the roof, the existing painted face brick of the house to be returned to natural brick colour, the installation of a Victorian fan gable infill with glass inlays to the façade of the house, the installation of a double-carport and pool gazebo and the Hubert Street fence.
As discussed in paragraph 3, while the majority of the amendments were approved by the Council, the applicant seeks through this review, the deletion of condition 1 in part 1 that has been imposed in relation to the infill panels of the Hubert Street fence and the deletion of part 2 that is the refusal of the proposed balcony and French doors at the rear of the existing dwelling.

Procedural history

The Council granted development approval to DA 234/2018 for proposed alterations and additions to the existing dwelling on the subject land in 2018 (2018 Approval).
The applicant submitted an application for development approval to the respondent on 10 June 2020 seeking approval to amend the 2018 Approval (the application), pursuant to cl 77 of the deemed provisions (set out in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Sch 2) (deemed provisions)). The application initially sought approval for the modification of a verandah to a bullnose verandah; addition of a chimney; proposed decorative barge boards; proposed dormer window projections to the southern elevation; proposed bay windows to the rear ground floor; and the addition of a rear balcony with appurtenant French doors to access it from the loft conversion.
The subject land is located within the Guildford Historic Townsite listed on the State Heritage list as a precinct. The application was therefore referred to the Heritage Council for its advice pursuant to s 73 of the Heritage Act 2018 (WA) (Heritage Act). The Department of Planning Lands and Heritage in its response dated 7 August 2020 advised that:
•The revision includes elements that detract from the modest aesthetics of the Federation era dwellings in this part of James Street.
…
Noting that the current referral is for minor revisions to a previously approved development, we do not object to the proposal.
Please note that this advice is provided from a heritage perspective only, and there has been no assessment of the proposals [sic] compliance with local planning policy. Compliance with local planning policy is a matter for the City of Swan.[3]
[3] Respondent's Amended Statement of Issues, Facts and Contentions (SIFC) dated 11 May 2023, para 9.
The respondent advises that the application was subject to further additions and amendments and that the application was referred to the Heritage Council for its advice on those matters on three further occasions. In the response from the Heritage Council to the s 73 referral the Heritage Council referred to the existing dwelling as a two storey dwelling despite the respondent having approved it as a loft conversion, this is particularly important as it appears to have coloured the manner in which the Heritage Council assessed the application as it states that '[t]he City previously approved a two storey addition to the building prior to the registration of Guildford Historic Town in the State Register of Heritage Places'[4] and it then supported the modified aspects of the application '[n]oting that the current referral is for minor revisions to a previously approved development'.[5]
[4] Correspondence from Department of Planning, Lands and Heritage dated 7 August 2020. Respondent's s 24 Bundle of Documents, page134, second dot point.
[5] Respondent's SIFC dated 11 May 2023, para 10.
It is not known if the Heritage Council may have had a different response to the impact of the balcony and appurtenant French doors, had it not considered that the existing dwelling was already two storey. The Heritage Council certainly did not make the distinction that the Council had determined that the additions to the existing dwelling were characterised as a loft conversion and that the balcony and appurtenant French doors accentuated the appearance of a two storey element to the existing dwelling additions.
There is no evidence that the Heritage Council specifically considered or made comment on the proposed fence to Hubert Street.
Two versions of the modified application were subject to public advertising and a total of 19 submissions received, 17 of which were primarily objections relating to privacy and overlooking, the two storey nature of the development and the design of the fence being inconsistent with the fences in Hubert Street.[6]
[6] Respondent's s 24 Bundle of Documents, pages 30 – 63.
The Council considered the application at its meeting of 11 August 2021 and resolved to approve the application subject to the following conditions:
1)Modify Development Approval DA234-18 pertaining to Lot 29 (No.77) James Street, Guildford by approving; an amendment to the front roof line, the installation of 22 solar panels and seven skylights to the roof, the existing face brick of the house to be returned to natural brick colour, the installation of a Victorian fan gable infill with grass inlays to the façade of the house, the installation of a double-carport and pool gazebo and a fence to Hubert Street, subject to the following conditions:
1.The piers of the front fence are to be constructed of facebrick with wooden fence palings.
2.The fence is to be no higher than 1.8 metres above ground level as measured at the front boundary of the lot.
3.The gazebo is to be offset 0.3 metres from the southern side boundary of the lot and stormwater generated by it is to be fully contained onsite.
4.Suitable arrangements being made for the connection of the land to the comprehensive district drainage system at the landowner/developer's costs. The estimated contribution amount is currently estimated to be $327.78. This is based on the current 20/21 Financial Year rate of $6.7547 per m² and the additional roof area of 48.525m² to the satisfaction of the City of Swan in accordance with the City of Swan Policy POL-C-096 'Guildford and South Guildford District Drainage Development Fund'. Payment shall be made prior to the issuance of a Building Permit application or prior to any work commencing on the site and/or prior to the commencement of the use permitted by this approval (at the earliest instance).
5.External colours, finishes and materials to be used in the construction of the building are to be in accordance with the approved colour schedule, as dated, marked and stamped, attached with the approved plans, unless otherwise approved in writing by the City of Swan.
6.Construction of the first floor (loft) addition to the dwelling shall incorporate noise insulation where practicable to achieve the indoor design sound levels recommended for the building type and activity as prescribed in Australian Standard 2021 (Acoustics - Aircraft noise intrusion - Building siting and construction).
7.This noise sensitive development adjacent to an existing major transport corridor must implement measures to ameliorate the impact of transport noise.
8.The development is to comply with WAPC State Planning Policy 5.4 'Road and Rail Transport Noise and Freight Considerations in Land Use Planning and implement Noise Insulation "Deemed to Comply" packages for this residential development.
9.All stormwater produced from the property shall be collected and disposed of into the existing drainage system of the property.
10.Earthworks, footings and/or structures are not to extend over any lot boundaries.
11.The proposed gate(s) shall open wholly within the subject lot.
12.The Applicant is to ascertain the location and depth of any services that may interfere with this development. Any adjustment to these services required as part of this approval, must be arranged by the Applicant prior to works commencing on the site. Any adjustment must be approved by the relevant service authorities and will be at the Applicant's expense.
13.Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval of the City.
2)Not approve the proposed installation of a balcony with balustrade, with an appurtenant French door to the southern façade of the existing dwelling for the following reason:
1.The installation of a balcony is not considered to be consistent with the style of the existing dwelling nor the style of other dwellings within Hubert Street.
3)Within 6 months of the date of this decision, the opening in the southern façade of the building that was to be for the installation of the French door is to be completed with a dormer window in accordance with the original approval.
4)Note the reason for changing the recommendation is to ensure that the modifications to the existing house at 77 James Street are in keeping with the heritage character of Guildford.[7]
[7] Respondent's SIFC dated 12 August 2022, para 12.

For the purposes of the review the parties have agreed that the terminology 'wooden fence palings' used in condition 1 of part 1 can be more appropriately described as 'timber pickets'.
On 21 September 2021 the applicant commenced its application for review in relation the conditions of the approval, the effect of conditions the subject of the review was to:
(a)redesign the front fence to include timber pickets infill instead of black iron spear infill (part 1 condition 1);
(b)The height of the fence to be no higher than 1.8 metres above ground level (part 1 condition 2);
(c)require a proposed gazebo to be set back 300mm from the rear lot boundary (part 1 condition 3).
The applicant also sought review in relation to the refusal of the proposed balcony and appurtenant French door (part 2) and the requirement to replace the opening for the French door with a dormer window in accordance with the original approval (part 3).

The parties attended mediation on 9 November 2021 following which the Tribunal made orders inviting the applicant to provide an amended application and inviting the respondent to reconsider its decision Pursuant to s 31(1) of the SAT Act, on or before 28 February 2022.
The applicant subsequently submitted amended plans for reconsideration to the respondent on 24 November 2021 which were considered by Council on 2 February 2022 with Council resolving to grant approval subject to conditions. However, prior to the notice of determination being issued, on 28 February 2022 the Council resolved to revoke the 2 February 2022 resolution, and to reaffirm its decision of 11 August 2022.
The Tribunal heard and determined an application for injunction seeking a declaration that the respondent did not have the legal power to revoke its reconsideration decision, however Jackson J on 28 February 2022 declined to make this declaration on the basis of the relevant provisions of s 5.25(1)(e) of the Local Government Act 1995 (WA) and r 10 of the Local Government (Administration) Regulations 1996 (WA).[8]
[8] Richardson and City of Swan [2022] WASAT 17.
The applicant submitted further amended plans on 28 July 2022. It is those plans for which approval is now sought. These amended plans included a redesign of the gazebo to meet the setbacks as agreed by the parties and showed the Hubert Street fence with face brick piers and decorative black iron infill spears at a maximum height of 1.8 metres. The rear facing balcony appears to be the same design as refused by the respondent on 11 August 2021.
The brick piers for the Hubert Street fence have been approved by Council and are not in dispute between the parties.
The parties were provided the opportunity to make further submissions in relation to the Hubert Street fence being constructed entirely of timber pickets should the Tribunal determine that this is the correct and preferrable decision. The respondent made submissions dated 2 October 2023. The applicant made submissions dated 3 October 2023 and declined to make further submissions in response to the respondent's submissions of 2 October 2023.
The Heritage Council responded to the Tribunal's referral for the purpose of s 241(2) of the PD Act advising in correspondence dated 29 November 2023 that:
The Heritage Council ('Council') has reviewed the matter and has no specific advice regarding the application in question at this time. Nonetheless, we wish to underscore our readiness to offer guidance and input to the Tribunal in the event of any amendments to the application. In the event of such revisions, we recommend referring the updated application to the Council for consideration.

Local Planning Framework

The subject land is zoned 'Residential' with a density coding of R5 under the City of Swan Local Planning Scheme No. 17 (LPS 17 or Scheme).
LPS 17 is comprised of the Scheme Text, the deemed provisions, and the Scheme Map. To the extent of any inconsistency between a deemed provision with another provision of LPS 17, the deemed provision prevails, and the other provision is, to the extent of the inconsistency, of no effect.
Further, pursuant to cl 2.1 of LPS 17 the Scheme is to be read in conjunction with the City of Swan Local Planning Strategy (LP Strategy) as follows:
Except to the extent that the Local Planning Strategy is inconsistent with the Scheme, determinations of the local government under the Scheme are to be consistent with the Local Planning Strategy.
Clause 1.6 of LPS 17 sets out the aims of the Scheme. The relevant aims to this matter include:
(a)Provide for a range of compatible housing and associated development, in neighbourhoods with a community identity and high levels of safety and amenity.
…
(h)protect objects and places of particular natural, historic, architectural, scientific and cultural significance.
Clause 4.2.7 of the Scheme sets out the objectives of the Residential zone and states:
a)provide for a range of forms and densities of residential development to meet the needs of the wide variety of households which make up the community;
b)promote a residential environment in each locality consistent with the form and density of residential development permissible in the locality, so as to enhance a sense of place and community identity;
c)preserve and enhance those characteristics which contribute towards residential amenity, and to avoid those forms of development which have the potential to prejudice the development of a safe and attractive residential environment;
d)provide for a limited range of ancillary development compatible with the form and density of residential development, and complementary to the needs of local communities, but which will not compromise residential amenity;
e)avoid development of land for any purpose or in any manner that would detract from the viability or integrity of development in either the Strategic Regional Centre or the Commercial zones.
An application to amend a development approval for which approval has been granted can be made under cl 77 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions):
77. Amending or cancelling development approval
(1)An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following —
(a)to amend the approval so as to extend the period within which any development approved must be substantially commenced;
(b)to amend or delete any condition to which the approval is subject;
(c)to amend an aspect of the development approved which, if amended, would not substantially change the development approved;
(d)to cancel the approval.
(2)An application under subclause (1) —
(a)is to be made in accordance with the requirements in Part 8 and dealt with under this Part as if it were an application for development approval; and
(b)may be made during or after the period within which the development approved must be substantially commenced.
(3)Despite subclause (2), the local government may waive or vary a requirement in Part 8 or this Part in respect of an application if the local government is satisfied that the application relates to a minor amendment to the development approval.
(4)The local government may determine an application made under subclause (1) by —
(a)approving the application without conditions; or
(b)approving the application with conditions; or
(c)refusing the application.
Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development the subject of the application. The relevant matters relating to this application are as follows:
•the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area (subclause (a));
•the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving (subclause (b));
•any approved State planning policy (subclause (c));
•any local planning strategy for this Scheme endorsed by the Commission (subclause (fa));
• any local planning policy for the Scheme area (subclause (g));
•the built heritage conservation of any place that is of cultural significance (subclause (k));
•the effect of the proposal on the cultural heritage significance of the area in which the development is located (subclause (l));
•the compatibility of the development with its setting, including —
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development 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 development (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•any submissions received on the application (subclause(y)); and
•any other planning consideration the local government considers appropriate (subclause (zb)).
Clause 8(1) of the deemed provisions provides the requirement and procedure for the preparation of a heritage list for a local government and states:
8.Heritage list
(1)The local government must establish and maintain a heritage list to identify places within the Scheme area that are of cultural heritage significance and worthy of built heritage conservation.
(2)A heritage list established under subclause (1) must set out a description of each place and the reason for its entry on the heritage list[.]
The City of Swan has a heritage list that has been adopted pursuant to cl 8(1) of the deemed provisions. The subject land is in the Guildford Historic Town (Place Number 02915) of the State Register of Heritage Places kept pursuant to the Heritage Act and is located within the Guildford Conservation Precinct, which is a heritage area pursuant to LPS 17. Originally classified as a conservation precinct under the previous City of Swan Town Planning Scheme No. 9, pursuant to cl 7.2A.1 of LPS 17, conservation precincts under the former Scheme continue as heritage areas under LPS 17.
The subject land is also Place No. 155 listed on the City of Swan Local Heritage Inventory 2022 (LHI) as a Category 3 Place. The site is therefore a heritage protected place pursuant to cl 1A of the deemed provisions which states:
1A.Heritage‑protected places
(1)A heritage‑protected place is a place —

(a)that is entered in the State Register of Heritage Places under the Heritage Act 2018 section 42[.]
…
(e)that is included on a heritage list as defined in clause 7; or
(f)that is within a heritage area as defined in clause 7.

While cl 61 of the deemed provisions exempts the erection of, or alterations or additions to, a single house on a lot from the need for development approval, this is not the case for the subject land as it is located in a heritage‑protected place and is therefore not exempt from the requirement to obtain development approval.
Further, the Guildford-Mandoon Heritage Area Local Planning Policy (GM LPP) is applicable to the subject land. The subject land is a contributory place, defined as a building constructed prior to 1945, within the South East Precinct (the Precinct) designated by the GM LPP.[9]
[9] Respondent's Second Supplementary s 24 Bundle of Documents dated 5 May 2023, tabs 1 and 2 – GM LPP – Adopted 5 October 2022.
The GM LPP was approved by the Western Australian Planning Commission (WAPC) at its meeting of 8 November 2022, and a notice of that approval was gazetted on 29 November 2022. The GM LPP has been operative since that date. The GM LPP required the approval of the WAPC as it amended certain aspects of the residential planning codes which could only be amended with the WAPC's approval.
Part A of the GM LPP includes a statement of intent for the policy statements with the intention that the broad objectives of the policy should be achieved with more specific criteria aimed at achieving those objectives.
The objectives of the GM LPP are:
1)To conserve and protect the cultural heritage significance of the Guildford Heritage Area as identified by its entry of the State Register of Heritage Places and as a designated Heritage Area protected under the City's Local Planning Scheme.
2)To ensure that change within the Guildford Heritage Area is undertaken in a way that respects and enhances its cultural heritage significance.
3)To inform new design so that it successfully integrates with Guildford's historic context and streetscape character.
4)To ensure the retention of the streetscapes, landscapes and buildings which contribute to the identified heritage character of Guildford.
The policy statements outline the appropriate means to conserve and manage the change of elements which contribute to the significance of the Guildford Heritage Area. These have been identified by the Heritage Council of Western Australia and in the Character Statements contained within Part B of this Policy.
The performance criteria set out the criteria and outcomes that define how a development proposal can meet the intent of the policy statement. The measures are more specific than the performance criteria and include the specific measures to assist in meeting the performance criteria relevantly including residential typology specific measures. The design guidance assists with achieving contextually appropriate design for Guildford and suggestions on how to meet performance criteria.
Part B of the GM LPP provides character statements that must be referred to for all development proposals to ensure understanding of the immediate contributory context.
Clause 8.3 of GM LPP sets out the provisions relating to alterations and additions to contributory places. The intent of cl 8.3 is as follows:
Most existing buildings can accept some level of new additions without having a negative impact on the cultural significance and character of the Guildford Heritage Area. Acceptable new alterations and additions do not visually intrude on Contributory Places or the overall streetscape and are consistent with the character of the area in which they are located taking into account style, scale, materiality, form, function and siting.
The relevant measures provided in cl 8.3 are as follows:
M8.3.1Additions to existing buildings of a residential typology shall appear as single storey when viewed from the street, unless they are located in a streetscape which has a prevailing contributory two storey character.
…
M8.3.4Additions visible from the public realm are to be built of traditional materials and visually compatible but easily distinguishable from the original building form.
The relevant performance criteria for cl 8.3 are as follows:
C8.3.1Additions respect the predominant scale (height, bulk, density and pattern of arrangement) of the existing building and do not have an adverse visual impact on it.
C8.3.2Additions are compatible to the predominant form and character of the existing building, its streetscape context and the urban character in the surrounding area.
…
The relevant design guidance for cl 8.3 is as follows:
DG8.3.1GENERAL
a.Refer to the Character Statement relevant to a specific subject place for an understanding of the prevailing character context and the appropriate forms and materials to be used in informing the design of alterations and additions.
b.Contributory Places retain visual prominence to the primary and secondary streets.
…
d.New additions that are visible from surrounding streets are in keeping with materiality, form and character of their Character Statement context.
…
DG8.3.2RESIDENTIAL TYPOLOGY
…
c.Additions visible from the secondary street shall appear as single storey.
d.Additions may be integrated by matching roof lines, under an extended skillion roof, or within the existing building roof form where appropriate to the form of the Contributory Place.
e.New additions are constructed using traditional materials, appropriate to the materiality of the Contributory Place and prevailing character of its Character Statement. Unpainted, red face brick with some render detailing or timber framed extensions are most commonly suitable.
f.Doors and windows in new additions are of similar size, shape, orientation and detailing to the Contributory Place where they can be seen from the streetscape.
…
h.Additions should be designed to ensure mature trees are retained.
Clause 8.7 of GM LPP relates to fences and boundaries, the intent of which is stated as:
The treatment of front/street setback areas has a significant impact on the streetscape. Retaining uniformity and the scale and proportions of front fences and gates and walls will allow visual transparency between the Contributory Places and the streetscape which is critical in maintaining the character of Guildford Heritage Area.
The relevant measures for cl 8.7 are as follows:
M8.7.1Traditional fences are to be retained and where missing or damaged be restored based on archival evidence and the predominant boundary treatment pattern of the character area.
M8.7.2Fence heights are to be in keeping with the predominant pattern along the streetscape. In residential typology areas they shall not exceed 1200mm in height to the primary street and 1800mm to other streets. Refer to figure 28 for detail of how this is to be applied.
M8.7.3Finishes, materiality and construction of fences shall be visually permeable within the streetscape and protect vehicular and cyclist sightlines.
M8.7.4 Fence design shall be in keeping with the prevailing contributory onsite built form and streetscape context.
The relevant performance criteria for cl 8.7 are as follows:
C8.7.1Fences and gates within the front setback area enhance the character of the streetscape and do not have a discordant visual impact.
C8.7.2Boundary elements allow buildings and gardens to contribute to the streetscape. Fences and gates do not obstruct views to buildings and gardens and are visually permeable.
…
The relevant design guidance for cl 8.7 is stated as:
DG8.7.1Height of Fencing
…
b.Secondary street fencing may be up to 1800mm to offer privacy. (Refer to Figure 28).
DG8.7.2Style of Fencing
a.Fences and gates within the front/street setback area reflect the prevailing contributory character and streetscape in which its located (refer to map 3 and Part B). With reference to the relevant Character Statement, timber picket, iron picket and brick pier, timber post and vertical rail with chain mesh, may be appropriate.
b.For properties with mature gardens to the street front, the retention of boundary hedges is an appropriate alternative to the introduction of new fencing.
c.Solid metal panel fencing is inappropriate for any street fencing and will not be supported but can be supported for dividing fencing behind the front setback. See Figure 28.
DG8.7.3Walls
a.Brick walls of Flemish and English garden bond can be built up to a maximum of 1200mm to front boundary or 1800 for side and rear boundary. Refer to Figure 28 for details.
b.Rendered brick elements are appropriate for Interwar era.
c.Limestone is not traditional to Guildford and will not be supported.
Given that the fence in question faces Hubert Street it is relevant to look at the character statement for Hubert Street which states in regard to streetscape character:
•Front fences are almost entirely timber picket, with one exception. Dwellings at either end of the street addressing James Street and Helena Street exhibit differing fencing styles.

State planning framework

Metropolitan Region Scheme

The subject land is zoned 'Urban' under the Metropolitan Region Scheme.

State Planning Policy 3.5 – Historic Heritage Conservation

In addition to cl 67(2)(c) of the deemed provisions, the Tribunal, pursuant to s 241(1)(a) of the PD Act is required to have due regard to any State planning policy that may affect the matter of an application for review. In this case State Planning Policy 3.5 Historic Heritage Conservation (SPP 3.5) is relevant and its objectives as set out in s 4 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 decision-making.
•To provide improved certainty to landowners and the community about the planning processes for heritage identification, conservation and protection.[10]
[10] Respondent's s 24 Bundle of Documents Tab 8, page 264 – SPP 3.5, s 6.5, Western Australian, Government Gazette, No. 112 (29 May 2007), page 2479.
Section 6.5 of SPP 3.5 provides the specific matters that should be considered in assessing an application for approval to demolish a heritage place as:
Alterations, extensions, change of use or demolition affecting a heritage place (including a place within a heritage area)
•The level of heritage significance of the place, based on a relevant heritage assessment.
•Measures proposed to conserve the heritage significance of the place and its setting.
•The structural condition of the place, and whether the place is reasonably capable of conservation.
•Whether the place is capable of adaptation to a new use which will enable its retention and conservation.[11]
[11] Respondent's s 24 Bundle of Documents Tab 8, pages 262 – 267 – SPP 3.5, s 6.5, Western Australian, Government Gazette, No. 112 (29 May 2007), page 2481.
Development control principles are set out in s 6.6 of SPP 3.5. With respect to development within a heritage area it provides:
•Alterations and additions to existing buildings should be designed and sited in a manner that respects and complements the heritage significance of the area.

State Register of Heritage Places

The subject land is within the Guildford Historic Town (Place Number 02915), which is included in the State Register of Heritage Places kept pursuant to the Heritage Act.
Under cl 241(2) of the PD Act the Tribunal is to refer an application for review to the Heritage Council for advice, receive and hear submissions, and have due regard to the objects of the Heritage Act as follows:
(2)In the case of an application that relates to land to which the Heritage Act 2018 applies, and whether or not a State planning policy provides for the conservation of that land, the State Administrative Tribunal —
(a)is to refer the matter to the Heritage Council for advice; and
(b)may receive and hear submissions made on behalf of the Heritage Council; and
(c)may join the Heritage Council as a party to the application; and
(d)is to have due regard to the objects of the Heritage Act 2018.

The Objectives of the Heritage Act as stated in s 3 are:
3.Objectives
The objectives of this Act are, with due regard for the rights of property ownership —
(a)to promote understanding and appreciation of Western Australia's cultural heritage; and
(b)to recognise the importance of places of cultural heritage significance and their stories in understanding the course of Western Australia's history; and
(c)to provide for the identification and documentation of Western Australia's places of cultural heritage significance; and
(d)to encourage and facilitate the conservation, continuing use, development and adaptive reuse of places of cultural heritage significance in ways that represent high standards of heritage conservation and are in harmony with cultural heritage values.

Issues

The issues for determination in this case as agreed by the parties are:
(1)In regard to the approval of the Hubert Street fence, should condition 1 of part 1 be deleted in order for the proposed black iron spears in the Hubert Street fence to be approved; and
(2)In regard to part 2, should the proposed rear balcony and appurtenant French doors be approved.
having regard to:
(a)cultural heritage significance considerations;
(b)the streetscape, character and amenity of Hubert Street;
(c)SPP 3.5; and
(d)the Guildford-Mandoon Heritage Area Local Planning Policy.
In essence, the applicant is seeking deletion of condition 1 to effect approval of the black iron spear infill to the fence and for refusal of the balcony and appurtenant French doors to be set aside and the balcony and appurtenant French doors be approved.
In relation to these matters the Tribunal had the benefit of expert evidence from Ms Laura Gwendolyn Gray a heritage and conservation consultant and Ms Bianca Sandri a town planning consultant called on behalf of the applicant, and Ms Flavia Boghossian Kiperman a heritage architect and Mr Joe Algeri a town planning consultant, called on behalf of the respondent.
In relation to the heritage expert witnesses, a joint conferral of experts was held on 12 October 2022 and in the Joint Statement of Witnesses dated 14 October 2022 and in evidence the experts agreed the following:
•The subject site has some cultural heritage significance;
•The original building is of the Federation period;
•The original building is not of the Victorian period;
•The 2018 addition is not of a particular style and distinguishes itself from the original building;
•The 2018 addition which confuses the understanding of the history of the place which does impact on the original building by not articulating the actual history of that building;
•Their primary area of concern is the Hubert Street frontage and they agree that the original building addressed both streets and Hubert Street is a primary frontage to the additions even though it is acknowledged that it is defined as the secondary street for the subject land;
•The other three corner lots do not address their Hubert Street frontage; and
•The lots in between those corner lots on Hubert Street present narrow street frontages unlike the corner lots.

Issue 1 – should the proposed black iron spears in the Hubert Street fence be approved?

The respondent contends that the proposed decorative black iron spear infill to the approved brick pier and plinth fence is not a type of fencing associated with the period of construction and the style of the dwelling on the subject land.
The respondent acknowledges that there is a small degree of variation to the fencing in the Hubert Street streetscape however submits that, with the exception of one fence to a dwelling that does not contribute to the heritage values of Guildford, fences on the eastern side of Hubert Street are white timber pickets. The prevailing character, style and amenity of the street is defined in part by the use of timber picket fences and the use of black iron spear infill within the fence will not only not enhance the character of the streetscape, but it will have a 'discordant visual impact'.[12]
[12] Respondent's SIFC dated 12 August 2022, para 44.
For these reasons they say that the style and materials used in the fence detract from the heritage significance of the subject site, its streetscape context in Hubert Street and from the broader Guildford Heritage Area as it fails to respect or complement the heritage significance of the area contrary to SPP 3.5. The respondent further contends that the proposed black iron spears are contrary to GM LPP in that the fencing is within the street setback area and does not reflect the prevailing contributory character and streetscape of Hubert Street in which its located. It is not a type of fencing contemplated by design guideline DG 8.7.2 of GM LPP and is not in keeping with the prevailing on site built form or streetscape context, contrary to measure M8.7.4 and DG 8.7.2.
The respondent's witness Ms Kiperman prepared a Heritage Impact Assessment Guildford, 77 James Street dated October 2021 (HIA FK). She refers to the POL-C-106 Local Planning Policy – Guildford Conservation Precinct (LPP 106) that was relevant at the time the Council made its decision in relation to this matter and points out that in cl 5.6 states that 'fence types which relate to the date of construction and to the type of property enclosed are appropriate' and this is in the context of the overarching statement that '[t]he treatment of front/street setback areas has a significant impact on streetscape. Selecting front fences and gates and developing driveways, paths and gardens will play an important part in maintaining Guildford's character.'
The GM LPP, she submits, identifies that the brick pier and picket fence combination is for new houses only, it is not mentioned as a suitable form of fence within the heritage precinct. The investigations undertaken for the HIA FK identified the dwelling on the subject land as a simple Federation Queen Anne style home constructed in 1910.
The type of fence proposed may be appropriate for a more ornate dwelling of the Victorian era, however Ms Kiperman asserts that it is not the type of fence that would be used to enclose this type of dwelling. She says that while Ms Gray opines that the original dwelling faces James Street and therefore the proposed fence to Hubert Street does not contribute to the streetscape, Ms Kiperman asserts that the proposed fence on Hubert Street is a significant portion of Hubert Street and impacts on the overall streetscape of Hubert Street, which I accept.
It is her position that the proposed metal spear infill is not consistent with the GM LPP and would have a detrimental impact on the heritage values of the precinct. Ms Kiperman points to the relevant measures that require that where traditional fences are missing, they are restored based on archival evidence and the predominant boundary treatment pattern of the character area and that in accordance with M8.7.4 of GM LPP 'Fence design shall be in keeping with the prevailing contributory onsite built form and streetscape context'.
In referencing the performance criteria and design guidance of the GM LPP Ms Kiperman says that whilst there is no archival evidence of the original fencing on the subject land there is archival evidence of many other properties of the same size and simple Federation Queen Anne style that can be referenced to propose a new fence for the place and that the proposed form of fencing is inconsistent with this.
Ms Gray has prepared a Heritage Impact Statement, 77 James Street Guildford dated 4 November 2021 (HIS LG) which describes that the dwelling 'demonstrates the federation bungalow architectural style'. Ms Gray concludes in her witness statement that in her opinion, 'the proposed fence will have no detrimental impact on the existing property at 77 James Street; the Federation residence facing James Street that is defined by the boundary hedge, or the 2018 addition that fronts Hubert Street where the fence is proposed, on the secondary street frontage'.[13] She says that there are similar fences in the Hubert Street streetscape that in her opinion contribute to the Hubert Street streetscape and the heritage and character of the Historic Guildford Town.
[13] Witness Statement of Ms Laura Gwendolyn Gray (Ms Gray) dated 4 October 2022 – '12 Summary', para 1.
Ms Gray in her witness statement states that '[t]he proposed wrought iron spears of the fence infill provide a subtle link to the Federation frontage and east side wall, that evidence wrought iron security bars over the windows'[14] and further that the proposed fence only extends for approximately 50% of the secondary street boundary and is associated with the addition not the original dwelling.
[14] Witness Statement of Ms Gray dated 4 October 2022, para 9(i).
In evidence she acknowledged that the latter is not the case, that she may have misunderstood the changing plans, that the proposed fence is also associated with the original building, not only the addition, and that it extends for greater than 50% of the secondary street frontage. She also conceded in evidence that this type of wrought iron infill was found in more wealthy or affluent Federation buildings and that whilst there are two others in the street with brick pier and wrought iron infill (the timeframe of construction and approval status of which is not known), when asked whether she would expect this sort of fencing to be associated with a Federation bungalow style house, as she had described the dwelling, she responded that it 'might be a bit fancy'.[15]
[15] ts 62, 16 May 2023.
Ms Gray agreed in evidence that the context of this fence is more of a working-class area and that the wrought iron spears do not reflect the prevailing character and streetscape of Hubert Street however she says that is because they are small lots with picket fences unlike the subject land which has a longer frontage to Hubert Street.
The heritage witnesses both acknowledged there were examples of poor or inappropriate fencing in the streetscape, however these did not form or impact significantly on the prevailing character of fencing in Hubert Street. With regard to the eastern side of Hubert Street, this related primarily to the fencing to a non-contributory dwelling on the land immediately adjacent to the subject land and also the secondary street fence to No 66 Helena Street that appears to be predominantly asbestos fencing with a low lying masonry and timber picket fence. On the western side there are two dwellings at No 3 and No 5 Hubert Street with wrought iron infill, a secondary street fence to No 64 Helena Street constructed of chain-link and the corner lot at No 79 James Street which has a solid fence to both Hubert and James Streets.
The planning expert witnesses agreed that the locality, whilst broader in Mr Algeri's witness statement, could appropriately be considered as just the Hubert Street streetscape including the four corner lots and I find it to be so. They agreed that the two properties at No 3 and No 5 Hubert Street had more recent fences with wrought iron infill but that there was evidence provided by the respondent that No 3 also had previously had an approximately 1.8 metre high white picket infill fence.[16]
[16] Exhibit 14 – Google Street View photos for December 2007, November 2009 and May 2014 – 3 and 5 Hubert Street.
The planning witnesses agreed that visually permeable fencing could be achieved in accordance with the R-codes definition of visually permeable, with the provision of picket infill, though Ms Sandri maintained that greater visual permeability could be achieved with wrought iron infill.
They agreed that a timber picket fence compliant with the policy which would be 1.2 metre for 25% of the length of the boundary behind the primary building line and 1.8 metre high for the remainder would comply with the visual permeability principles and be entirely consistent with the streetscape. Mr Algeri argues that as the applicant had indicated its intention to retain the existing hedge with the proposed fence, the whole permeability argument 'goes out the window'[17], that condition 1 is about materiality and it should be timber not metal spears.
[17] ts 141, 17 May 2023.
The expert planning witnesses agreed in evidence that both the applicant's proposed fence and the Council's condition do not meet measure M8.7.2 of the GM LPP. In relation to M8.7.4 of the GM LPP, the planning witnesses agree that to be in keeping with the prevailing contributory built form, the fencing should relate to the period and style in which the contributory building was constructed.
The applicant contends that the proposed fence with wrought iron infills will not have a detrimental visual or physical impact on the original dwelling, but rather that the alterations and additions more broadly will make a positive contribution to the heritage significance of the Hubert Street context, and Guildford Historic Town. They assert that the development will have a positive impact on the streetscape of James Street east that is otherwise dominated by high brick walls, and that it complements the vistas to the north-east in Hubert Street.
If the brick piers are allowed, Ms Sandri opines that the applicant's proposal is preferrable. Mr Algeri disagrees and says that the phrase 'prevailing contributory character' means that it must be timber pickets not wrought iron spears that are preferred and that he does not move beyond that because condition 1 is about materiality and the material of the prevailing contributory character is timber picket.
The GM LPP as a policy is required to be given 'due regard' under cl 67(2) of the deemed provisions.
As Jackson J articulates in Harper:[18]
74But the obligation to give planning policy mere 'due regard' and to not apply the policy inflexibly does not render the policy without effect.
75'Due regard' requires that we give 'active or positive consideration' to relevant policy.[19] It is for us to determine the weight to be given to the policy.[20] And we are required to have due regard to the requirements of orderly and proper planning, [21] which requires a 'disciplined, methodical, logical and systematic' approach which has at its heart the planning framework. Orderly and proper planning requires, as a public process, the assessment of applications for approval against existing planning policies.[22]
76That, in turn, requires that any exercise of discretion must be objective, such that planning principles identified in planning policies will not be lightly departed from without the demonstration of a sound basis for doing so, which basis must itself be grounded in planning law or principle.[23]
[18] Harper Investments WA Pty Ltd and Presiding Member of the Metro Inner North Joint Development Assessment Panel [2023] WASAT 130 (Harper) at [74] – [76].
[19] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [107] – [118] especially at [116].
[20] Marshall at [117] – [118].
[21] Deemed provisions, cl 67(2)(b).
[22] Marshall at [179] – [180].
[23] Marshall at [182]. Also, Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] 2 ALD 634 at [644] – [645].
The respondent submits in relation to the GM LPP that while it is for the Tribunal to determine the weight to be given to the policy, it is a fulsome policy and the objectives, design guidelines and measures should be given considerable weight in the Tribunal's overall exercise of discretion.
The Council has relied upon condition 1 in making its determination to approve the Hubert Street fence and it was not prepared to approve the applicant's original proposal or the applicant's amended proposal for the Hubert Street fence. However, the question as to whether condition 1 is imposed must be secondary to the question of whether or not the Hubert Street fence as proposed should be approved at all.
At the time of the Council's decision of 11 August 2021, the GM LPP was a draft document and the weight attributed to it should reflect that. The Tribunal in making its decision now needs to make it in the context of a changed planning framework whereby the GM LPP is no longer a draft document but a formally adopted local planning policy prepared and adopted in accordance with Sch 2, Pt 2, cl 4, subclause (3) of the deemed provisions and appropriate notice of the adoption of the GM LPP as per cl 87 of the deemed provisions. In my view the weight to be attributed to the adopted GM LPP is substantially greater particularly given the objectives as outlined in paragraph [44] and its role in conserving and protecting the cultural heritage significance of the Guildford Heritage Area entered on the State Register of Heritage Places and designated as Heritage Area protected under the City's Local Planning Scheme.
As discussed in [23] above, the parties were given the opportunity to make submissions in relation to whether the fence would more appropriately be entirely constructed of pickets.
The applicant in his submission of 3 October 2023 advised that he no longer has sufficient funds and that it was therefore no longer his intention to construct the full fence but that he has sufficient materials on site to complete six red brick piers and retain the cyclone fence and hedge and plant a hedge infill rather than build 11 piers and red brick material for the plinth for the full length of the proposed fence.
Mr Richardson, in his written submissions, put forward an alternative proposal which in effect was to amend his plans. Given that this was after the conclusion of the final hearing and there is no opportunity to hear expert evidence in relation to the plans, leave to submit the alternative plans is denied.
He does however submit that the fence is a secondary fence and that there is a need for privacy from the street, which appears at odds with the proposal before the Tribunal for wrought iron infill though he has advised it is his intention to retain the vine structure behind the fence. Mr Richardson also provided further information in the 3 October 2023 submission which went beyond the scope of submissions sought by the Tribunal in its orders of 17 August 2023, cannot be tested in evidence and will not be addressed by the Tribunal in these reasons.
In their submission of 2 October 2023, the respondent submits that the powers of the Tribunal in relation to the purpose of the review are:
5.Pursuant to section 29 of the SAT Act, the Tribunal may:
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and substitute its own decision,
and may in any case make any order the Tribunal considers appropriate.
6.Pursuant to section 27 of the SAT Act, the review is by way of a hearing de novo, and is not confined to matters that were before the original decision maker. The review may involve the consideration of new material whether or not it existed at the time the decision was made.
7.The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.[24] Neither the reasons for decision nor the grounds for review limit the Tribunal in the review.[25] [26]
[24] SAT Act, s 27(2).
[25] SAT Act, s 27(3).
[26] Respondent's Submissions pursuant to Tribunal's orders of 17 August 2023 paragraphs 5 – 7.
The respondent provides that pursuant to the GM LPP it is their position that:
(a)fencing within the front setback area should be an appropriate style and form to match the period of development of the building to which it is associated – performance criteria C8.7.3;
(b)fences within the front setback area should enhance the character of the streetscape and not have a discordant visual impact – performance criteria C8.7.1;
(c)fences should be visually permeable and not obstruct views to buildings – performance criteria C8.7.2;
(d)the design of fences should be in keeping with the prevailing contributory onsite built form and streetscape context – policy measure M8.7.4;
(e)fences within the front/street setback area should reflect the prevailing contributory character and streetscape in which it is located – design guidance DG8.7.2(a);
(f)the primary street fencing measures of the Heritage Policy are applicable to the secondary street for 25% of the length of the boundary behind the primary building line – figure 28, note 3;
(g)primary street fencing should not exceed 1200mm in height and secondary street fencing may be up to 1800mm – design guidance DG8.7.1; and
(h)a brick pier and picket fence combination is for new houses only – figure 29 note 4.[27]
[27] Respondent's Submissions pursuant to Tribunal's orders of 17 August 2023, para 8.

The respondent submits that the form of fencing proposed by the applicant will not be consistent with the GM LPP as it is not the appropriate style and form of fencing to match the period of development of the building on the subject land with which it will be associated. They say that the form of fencing required by condition 1, likewise, would not be consistent with the GM LPP and reiterate Mr Algeri's evidence that condition 1 is something of a compromise.
Further, it is the respondent's position that applying the GM LPP provisions would result in the Hubert Street fence being constructed of timber pickets to a height of 1200 millimetres for 25% of the length of the boundary behind the primary building line, and up to 1800 millimetres in height for the balance. They say there is no cogent reason to depart from the GM LPP provisions in relation to the Hubert Street fence.
The Town Planning Appeal Tribunal in Koltasz Smith & Partners v Western Australian Planning Commission (Koltasz Smith)[28] at [47] stated that 'in ordinary circumstances, the Tribunal should not embark upon a review of the approval when it is a condition that is the subject of appeal'. In Kaard and City of Nedlands [2005] WASAT 2 at [27], the Tribunal determined that, although Koltasz Smith was a subdivision appeal, similar considerations arise in the context of an application for review brought under s 8A of the Town Planning and Development Act 1928 (WA) (now PD Act).
[28] Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266.
These are however, not 'ordinary circumstances'. The exceptional circumstances that require the Tribunal to embark upon a review of the merits of the approval of the fence as a whole are that the GM LPP is now a formally adopted policy with the purpose being 'to guide the conservation of the cultural significance of the Guildford Heritage Area including the Guildford Historic Town on the State Register of Heritage Places protected by the Heritage Act 2018 and designated as the Guildford Heritage Area under the City of Swan Local Planning Scheme' of which the subject site is a contributory building.
This is a significantly different planning framework from that under which the Council made its decision to approve the brick piers and require only the infill to be changed to timber pickets for the proposed Hubert Street fence. Therefore, it is incumbent upon the Tribunal to consider whether there is a cogent reason to exercise discretion to approve the entire fence and not just the infill.
As articulated in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission at [24],[29] Barker J held that while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied.
[29] Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24].
His Honour said that:
… the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to the] particular application[.]
In addition, as stated by Pritchard J in Marshall at [182]:
… If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
For convenience's sake I repeat the objectives of the GM LPP which are:
1)To conserve and protect the cultural heritage significance of the Guildford Heritage Area as identified by its entry of the State Register of Heritage Places and as a designated Heritage Area protected under the City's Local Planning Scheme.
2)To ensure that change within the Guildford Heritage Area is undertaken in a way that respects and enhances its cultural heritage significance.
3)To inform new design so that it successfully integrates with Guildford's historic context and streetscape character.
4)To ensure the retention of the streetscapes, landscapes and buildings which contribute to the identified heritage character of Guildford.
Having considered the submissions and evidence received in relation to the fence I find I am persuaded by the position of the respondent and the evidence of Mr Algeri and Ms Kiperman that the proposed Hubert Street fence does not meet the relevant performance criteria for the exercise of discretion in this case. The Tribunal has concluded that based on the evidence there is no cogent reason to depart from the GM LPP in this case and development approval for the Hubert Street fence should be refused as it:
(a)is not of a style and form that that matches the period or style of the contributory dwelling on the subject land in the State heritage listed Guildford Historic Townsite;
(b)is not consistent with the prevailing character of fencing in the Hubert Street streetscape; and
(c)does not enhance the character of the streetscape but rather will have a discordant visual impact on the streetscape.
I find that the appropriate fence in this location and within the Hubert Street streetscape would be a fence that is constructed of timber pickets to a height of 1200 millimetres for 25% of the length of the boundary behind the primary building line, and up to 1800 millimetres in height for the balance.

Issue 2: should the proposed rear balcony be approved?

This issue relates to the proposed rear balcony and the appurtenant French doors that provide access to that balcony.
The balcony is an unroofed structure that occupies the same footprint as the approved single storey verandah. It is proposed to be constructed with vertical timber balustrading and is accessed via a set of glazed double doors of a width of 1.035 metres centrally located within the rear lot area of the elevation. This opening currently exists and would need to be modified should the balcony not be approved and part 3 of the respondent's decision deals with this.
The respondent contends that the proposed balcony and French doors are not consistent with GM LPP, as they are not sympathetic to the character of the existing property or the street context. The balcony is of a style that is inconsistent with the simple Federation Queen Anne style of the dwelling and will likely be perceived as faux heritage and reduce the visual prominence of the existing heritage building.
With regard to the Hubert Street streetscape, the respondent asserts that the rear additions to the dwelling were approved as a loft conversion and that the balcony and appurtenant French doors emphasise the two storey form of the additions.
The respondent submits that the matter for consideration is not about bulk and scale but rather whether as stipulated by measure M8.3.1, '(a)dditions to existing buildings of a residential typology shall appear as single storey when viewed from the street, unless they are located in a streetscape which has a prevailing contributory two storey character' and associated Design Guidance DG 8.3.2(c) that '(a)dditions visible from the secondary street shall appear as single storey'.
The impact of the balcony and the French doors is that it detracts from the heritage values of the subject land, the Precinct and the broader heritage area and the respondent asserts that 'their approval would be inconsistent with policy intent of SPP 3.5 which calls for additions and alterations to respect and complement the heritage significance of the heritage area.'[30]
[30] Respondent's Amended SIFC dated 11 May 2023, para 51.
Ms Kiperman submits that a simple Federation Queen Anne cottage would not have a French door onto a balcony on a second storey, that the proposed balcony and French doors are a poor heritage outcome, negatively impacting on the character of the original house at the front. Whilst the proposed balcony may be at the rear of the house Ms Kiperman says it 'is quite prominent on the streetscape, that is, a single storey streetscape. So, hence, adding the balcony will only increase the impact on the streetscape and on the contributory nature of the place'.[31]
[31] Transcript of final hearing 16 May 2023.
The applicant contends that the unroofed balcony and doors are sympathetic in scale to the existing development on the lot, will not have an impact on the prevailing streetscape of Hubert Street and that it is consistent with a range of verandahs and first floor balconies throughout the Guildford Historic Town. They submit that the proposed balcony and appurtenant French doors are an appropriate form of development as the GM LPP Part B notes in terms of streetscape character that 'windows are vertically orientated and arranged symmetrically across the façade'[32] and that the proposed southern façade illustrates a glazed door to the balcony that is centrally located between two dormer windows, creating a symmetrical designed façade, however neglects to say that the policy says this in the context of the façade revealing simple internal floor plans.
[32] Respondent's Supplementary s 24 Bundle of Documents dated 5 May 2023, page 137.
They say that the addition of the balcony across the southern façade 'breaks up the bulk and scale of the brick building façade on Hubert Street' and that views of the balcony will be partially obscured by the mature trees on the subject site and the approved carport located in the south-west corner of the site when viewed from Hubert Street.[33]
[33] Applicant's SIFC dated 2 September 2022, para 48.
Ms Gray opines that the non-contributory house on the adjoining property on Hubert Street probably contributes more to the negativity in the streetscape than the balcony, however Ms Kiperman contends that that house could be demolished and replaced at some stage with a more appropriate development. The heritage experts agreed with the principle that the poor examples in the streetscape should not be used to approve inappropriate development.
Ms Gray opined that the addition was already a two storey element and that in her opinion the balcony would not therefore impact on the way in which it was perceived from Hubert Street as it is already perceived as two storey.
The planning expert witnesses agree that the prevailing contributory character of Hubert Street is single storey, there are no existing balconies on the houses on Hubert Street and there is a two storey dwelling visible at the other end of Hubert Street on the opposite side of Helena Street.
Ms Sandri also opines that the addition to the rear is already two storey and that the perception of the second storey which is set back from the streetscape, is not impacted by the addition of a balcony.
Mr Algeri on the other hand whilst agreeing that the balcony would be set back from Hubert Street and the impact reduced to some extent by the mature tree, carport and fence, asserts that the addition is and was approved as a single storey with a loft conversion and that the balcony will serve to emphasise it as a two storey element, contrary to the GM LPP.
He accepts that that the addition was approved in 2018 but ruminates whether the current proposal for the balcony and appurtenant French doors is an incremental change whereby, intentionally or not, the approval pushes the boundaries a little at a time until the additions 'fly in the face of the [planning] framework'.[34] He submits that this dwelling has never been approved as two storeys despite Ms Sandri describing it as such, so the balcony is a further incremental change towards the rear facade resulting in the rear elevation being perceived as two storeys within the Hubert Street streetscape.
[34] ts 185, 17 May 2023.
On the basis that the dwelling 'shall appear as single storey when viewed from the street'[35] in respect to the impact of the balcony and appurtenant French doors to the manner in which the rear elevation contributes to the streetscape, I am persuaded by the position of the respondent and that of Ms Kiperman and Mr Algeri that the replacement of the verandah with a balcony and the French door to access that balcony results in the change of appearance of the rear elevation from its approved intent of appearing to be a single storey with loft arrangement to it emphasising the rear elevation as a two storey element clearly visible from within the Hubert Street streetscape.
[35] Measure M8.3.1 of GM LPP.
An element that reads as a two storey element in Hubert Street with a prevailing contributory single storey character is clearly at odds with the intent, measures and design guidance of the GM LPP. The applicant's argument that the proposed balcony 'breaks up the bulk and scale of the brick building façade on Hubert Street' is in my view also true of the approved verandah and no further benefit is gained in that regard by the approval of the balcony.
I am also persuaded by the argument of Mr Algeri that if approved, this balcony represents the incremental 'chipping away' at the principles and intent of the GM LPP, in the state heritage listed Guildford Historic Precinct.
While the respondent submits that the style of the proposed French doors and balcony are not consistent with the simple Federation Queen Anne style heritage dwelling, and the applicant submits that they are consistent with the addition and symmetrically located and appropriate, given that I find that I am persuaded by the respondent's arguments that the proposed balcony and appurtenant French doors emphasises the rear facade, and will appear, as a two storey element in the prevailing one storey Hubert Street streetscape and should therefore not be approved. I also find based on the evidence that I am persuaded by Ms Kiperman that the balcony and appurtenant French doors are not consistent with the style of the simple Federation Queen Anne contributory dwelling on the subject land and should therefore not be approved.
I find on the evidence that the development approval for the balcony and appurtenant French doors should be refused, as they would appear in the streetscape as a two storey element not in keeping with the single storey nature of the Hubert Street streetscape, is contrary to the intent for alterations and additions to contributory places as the proposed balcony will visually intrude on the overall streetscape and will have a negative impact on the cultural significance and character of the Guildford Heritage area.

Conclusion

The purpose of this review, under s 27(2) of the SAT Act, is 'to produce the correct and preferable decision at the time of the decision upon the review' and the Tribunal in considering the material before it must form its own view, in the exercise of discretion, as to whether development approval should be granted for the proposed development in this case.
The Tribunal, having considered the substantial merits of this case, taking into account the planning framework including those matters that must form part of its consideration under the Heritage Act and having due regard to the relevant matters for consideration specified in cl 67(2) of the deemed provisions, considers the matters the subject of this review warrant refusal in the exercise of discretion.
The Tribunal finds that the correct and preferrable decision in relation to the Hubert Street fence is to refuse to approve the development application for the entire Hubert Street fence.
In relation to the proposed balcony and appurtenant French doors, part 2 of the decision of the respondent dated 11 August 2021 is affirmed.

Orders

For the above reasons, the Tribunal makes the following orders:

The Tribunal orders:
1.Part 1 of the decision of the respondent dated 11 August 2021 is set aside and a decision is substituted that:
(a)Grants approval to modify Development Approval DA234-18 pertaining to No 77 (Lot 29) James Street, Guildford by approving; an amendment to the front roof line, the installation of 22 solar panels and seven skylights to the roof, the existing face brick of the house to be returned to natural brick colour, the installation of a Victorian fan gable infill with grass inlays to the façade of the house, the installation of a double-carport and pool gazebo, subject to the following conditions:
1.The gazebo is to be offset 0.3 metres from the southern side boundary of the lot and stormwater generated by it is to be fully contained onsite.
2.Suitable arrangements being made for the connection of the land to the comprehensive district drainage system at the landowner/developer's costs. The estimated contribution amount is currently estimated to be $327.78. This is based on the current 20/21 Financial Year rate of $6.7547 per m² and the additional roof area of 48.525m² to the satisfaction of the City of Swan in accordance with the City of Swan Policy POL-C-096 'Guildford and South Guildford District Drainage Development Fund'. Payment shall be made prior to the issuance of a Building Permit application or prior to any work commencing on the site and/or prior to the commencement of the use permitted by this approval (at the earliest instance).
3.External colours, finishes and materials to be used in the construction of the building are to be in accordance with the approved colour schedule, as dated, marked and stamped, attached with the approved plans, unless otherwise approved in writing by the City of Swan.
4.Construction of the first floor (loft) addition to the dwelling shall incorporate noise insulation where practicable to achieve the indoor design sound levels recommended for the building type and activity as prescribed in Australian Standard 2021 (Acoustics - Aircraft noise intrusion - Building siting and construction).
5.This noise sensitive development adjacent to an existing major transport corridor must implement measures to ameliorate the impact of transport noise.
6.The development is to comply with WAPC State Planning Policy 5.4 'Road and Rail Transport Noise and Freight Considerations in Land Use Planning and implement Noise Insulation 'Deemed to Comply' packages for this residential development.
7.All stormwater produced from the property shall be collected and disposed of into the existing drainage system of the property.
8.Earthworks, footings and/or structures are not to extend over any lot boundaries.
9.The proposed gate(s) shall open wholly within the subject lot.
10.The applicant is to ascertain the location and depth of any services that may interfere with this development. Any adjustment to these services required as part of this approval, must be arranged by the applicant prior to works commencing on the site. Any adjustment must be approved by the relevant service authorities and will be at the applicant's expense.
11.Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval of the City.

(b)Refuses to grant development approval for the Hubert Street fence.

2.The decision of the respondent to refuse to grant development approval for the balcony and appurtenant French door dated 11 August 2021 (part 2) is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
27 FEBRUARY 2024