ROE and CITY OF VINCENT
[2020] WASAT 8
•13 JANUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ROE and CITY OF VINCENT [2020] WASAT 8
MEMBER: MS R MOORE, MEMBER
HEARD: 6 NOVEMBER 2019
DELIVERED : 13 JANUARY 2020
FILE NO/S: DR 168 of 2019
DR 169 of 2019
BETWEEN: COLIN ROE
CORRINE ROE
Applicants
AND
CITY OF VINCENT
Respondent
Catchwords:
Town planning - Refusal of development approval for two storey single dwellings - Whether double width garage doors dominate streetscape
Legislation:
City of Vincent Local Planning Scheme No. 2, cl 7(1), cl 9, cl 9(f)(ii), cl 16, cl 16(1), cl 25, cl 26, Pt 4
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 60, cl 61, cl 67
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 51(1)
State Planning Policy 7.3: Residential Design Codes Volume 1, cl 5.2, cl 5.2.2, cl 5.4, cl 5.4.2, cl 7.3.1(a)
Result:
Decisions of respondent affirmed
Development approval refused
Category: B
Representation:
Counsel:
| Applicants | : | B Sandri (as Agent) |
| Respondent | : | T Hockley (as Agent) |
Solicitors:
| Applicants | : | Urbanista |
| Respondent | : | Allerding & Associates |
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve two applications brought by Colin and Corrine Roe (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decisions of the City of Vincent (City or respondent) to refuse development approval for two single dwellings to be constructed at Nos 48 (Lot 202) and 48A (Lot 201) Egina Street, Mount Hawthorn.
Background
On 6 June 2018 the applicants made an application to the City for development approval for two grouped dwellings on what at the time was a single lot. The development application was advertised and the City received eight objections and one submission neither supporting nor objecting to the proposal.
On 16 October 2018 the respondent resolved to refuse the development application for the following reasons:
1.The development does not satisfy the design principles of Clause 5.1.2 (Street Setback) of the Residential Design Codes or Clause P5.2.1 of the Built Form Policy, as the setback to the primary street is not consistent with, and will have a detrimental impact on, the established streetscape.
2.The development does not satisfy the design principles of Clause 5.2.1 (Setback of garages and carports) of the Residential Design Codes or Clause P5.7.2 of the Built Form Policy, as the visual dominance of the proposed garages compromise the character of the existing streetscape.
3.The development does not satisfy Clause C5.14.2 of the Built Form Policy as the development cannot achieve 30% of the site area as a canopy coverage.
On 26 October 2018 the applicants made an application to the Tribunal for a review of this decision (DR 274 of 2018). On 5 February 2019, following mediation and the preparation of amended plans, the respondent reconsidered its decision, in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and resolved to refuse the development application for the following reasons:
1.As a consequence of the bulk, scale and dominating appearance of the proposed garages of the single houses, the proposed development:
(a)Is not compatible with the established residential area in which it is located and is, therefore, inconsistent with an objective of the Residential zone under the Scheme;
(b)Is not compatible with its setting (clause 67(m) of the deemed provisions in schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015); and
(c)Would have an adverse impact on the amenity of the locality (clause 67(n) of the deemed provisions).
2.Contrary to an objective of the Residential zone under the Scheme, the design of the proposed development is contrary to sustainability principles because:
(a)The landscaping design would restrict solar access and ventilation to private open space areas of the single houses; and
(b)The building design, including a two storey boundary wall, would restrict solar access and ventilation to No. 48 Egina Street, Mount Hawthorn.
3.The matters referred to in paragraphs 2(a) and (b) would have an adverse impact on the amenity of the occupants of the proposed development.
4.Adequate landscaping on-site has not been provided to reduce the impact of the proposed development on adjoining properties and the streetscape (clause 67(p) of the deemed provisions).
On 15 February 2019 the Tribunal granted the applicants leave to further amend the plans the subject of the development application to those dated 4 February 2019 (Amendment F) and listed the matter to a final hearing.
On 9 April 2019 the Tribunal dismissed the application for review on the basis that the original decision under review was a development application for two grouped dwellings on a single lot but the lot had since been subdivided into two separate lots and the original lot no longer existed.
On 20 May 2019 the applicants submitted two separate development applications to the respondent for a single house on each newly created lot (Lots 201 and 202).
Respondent's decisions
The two development applications were considered by Council at its meeting on 20 August 2019. Both development applications were advertised to the community and the respondent received community comments in relation to concerns about:
•the 6 metre high lot boundary walls between the properties;
•the impact of the dwellings on the streetscape;
•the dominance of the garages;
•the form of subdivision;
•the quality of landscaping; and
•the overshadowing of the southern lot.
The planning officer report that went to Council recommended conditional approval of both development applications. In order to ensure that both dwellings would be constructed at the same time, the report recommended that a condition be applied to both approvals in the following terms:
Simultaneous Construction
1.1The owners must enter into a legal agreement with the City of Vincent drafted by the City's solicitors at the expense of the owners which is to:
1.1.1Require the owners to construct and complete the Single House [at No. 48 Egina Street] simultaneously with the Single House approved on 20 August 2019 for the adjoining lot at No. 48A Egina Street, Mount Hawthorn;
1.1.2Provide that the Single House [at No. 48 Egina Street] must not be occupied until the Single House at No. 48A Egina Street, Mount Hawthorn is completed; and
1.1.3Entitle the City to lodge an absolute caveat against the certificate of title for No. 48A Egina Street [and No. 48 Egina Street], Mount Hawthorn preventing its disposal until the person to whom it is disposed enters into an agreement with the City to abide by the agreement with the owners;
1.2Works relating to the single house must not be commenced until the agreement in condition 1.1 has been executed by the owners and the City; and
1.3The owners must abide by the terms of the agreement referred to in condition 1.1[.]
On 20 August 2019 the respondent resolved to refuse both development applications. On 21 August 2019 the applicants applied to the Tribunal for review of the two decisions and on 13 September 2019 the Tribunal programmed both matters to hearing.
On 16 September 2019, pursuant to s 51(1) of the SAT Act, the Tribunal ordered that the two matters (DR 168 of 2019 and DR 169 of 2019) were to remain as separate proceedings but were to be heard and determined together with evidence in one proceeding being evidence in the other.
The matters were heard on the 6 November 2019 and commenced with a view of the site and the immediate locality.
DR 168 of 2019 - No 48 (Lot 202) Egina Street, Mount Hawthorn
The respondent refused development approval for the single dwelling at No 48 (Lot 202) Egina Street, Mount Hawthorn for the following reasons:
1.As a consequence of the bulk and scale and dominating appearance of the proposed single house and garage, the proposed development:
1.1Is not an appropriate design for the context of the place and is inconsistent with Objective 1.3.1(a) of State Planning Policy 7.3: Residential Design Codes - Volume 1;
1.2Is not compatible with the established residential area in which it is located and is inconsistent with an objective of the Residential zone under the Scheme;
1.3Is not compatible with its setting (Clause 67(m) of the Deemed Provisions in Schedule 2 of the Planning and development (Local Planning Schemes) Regulations 2015; and
1.4Would have an adverse amenity impact and detrimental impact on the character of the locality (Clause 67(n) of the Deemed Provisions in Schedule 2 of the Planning and development (Local Planning Schemes) Regulations 2015;
2.Contrary to an objective of the Residential zone under the Scheme, the design of the proposed development is contrary to sustainability principles because the landscaping design would restrict solar access and ventilation to private open space areas of the single house; and
3.Adequate landscaping on-site has not been provided to reduce the impact of the proposed development on adjoining properties and the streetscape (Clause 67(p) of the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015) of the Planning and Development (Local Planning Schemes) Regulations 2015.
DR 169 of 2019 - No 48A (Lot 201) Egina Street, Mount Hawthorn
The respondent refused development approval for the single dwelling at No 48A (Lot 201) Egina Street, Mount Hawthorn for the following reasons:
1.As a consequence of the bulk, scale and dominating appearance of the proposed single house and garage, the proposed development:
1.1Is not an appropriate design for the context of the place and is inconsistent with Objective 1.3.1(a) of State Planning Policy 7.3: Residential Design Codes - Volume 1;
1.2Is not compatible with the established residential area in which it is located and is inconsistent with an objective of the Residential zone under the Scheme;
1.3Is not compatible with its setting (Clause 67(m) of the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations2015); and
1.4Would have an adverse amenity impact on the amenity and detrimental impact on the character of the locality (Clause 67(n) of the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations2015);
2.Contrary to an objective of the Residential zone under the Scheme, the design of the proposed development is contrary to sustainability principles because the:
2.1landscaping design would restrict solar access and ventilation to private open space areas of the single house; and
2.2building design, including a two storey boundary wall, would restrict solar access and ventilation to No. 48 Egina Street, Mount Hawthorn;
3.The matters referred to in paragraphs 2.1 and 2.2 would have an adverse impact on the amenity of the occupants of the proposed development; and
4.Adequate landscaping on-site has not been provided to reduce the impact of the proposed development on adjoining properties and the streetscape (Clause 67(p) of the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations2015).
5.The proposed lot boundary wall along the southern lot boundary does not satisfy the Design Principles of Clause 5.1.3 Lot Boundary Setbacks of State Planning Policy 7.3: Residential Design Codes - Volume 1 as the design and materials of the lot boundary wall presents an unacceptable level of building bulk and scale which:
5.1Has not been designed to reduce the impact of building bulk to No. 48 Egina Street, Mount Hawthorn;
5.2Results in a detrimental amenity impact to the use and enjoyment of No. 48 Egina Street, Mount Hawthorn; and
5.3The lot boundary wall does not preserve the visual character of Egina Street, and negatively impacts on the streetscape and character of the street;
6.As a result of the bulk impact of the proposed two-storey boundary wall, the development:
6.1Is not compatible with the established residential area in which it is located and is inconsistent with an objective of the Residential zone under the Scheme;
6.2Is not compatible with its setting (Clause 67(m) of the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations2015); and
6.3Would have an adverse impact on the amenity and a detrimental impact on the character of the locality (Clause 67(n) of the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations2015); and
7.The proposed development does not satisfy the Design Principles of Clause 5.4.2 Solar Access for Adjoining Sites of State Planning Policy 7.3: Residential Design Codes - Volume 1 and is contrary to sustainability principles that is an objective of the Residential Zone under the Scheme because:
7.1The extent of overshadowing falls onto a significant portion of the southern adjoining site behind the street setback line, which restricts solar access to No. 48 Egina Street, Mount Hawthorn; and
7.2The development does not provide protection of solar access to No. 48 Egina Street, Mount Hawthorn.
Proposed developments
The proposed developments are two single houses on two separate lots. The houses are two storey and similar in floor plan and rely on the construction of two adjacent two storey boundary walls. In effect, there will be a 16.39 metre long and an approximately 6 metre high wall along the northern boundary of No 48 and the southern boundary of No 48A. The boundary walls are set back approximately 11.8 metres from Egina Street and 13.13 metres from the rear boundaries.
Each dwelling has a double garage accessed from Egina Street. The dwelling at No 48 has a street setback to the garage of 8.21 metres and the garage of No 48A has a street setback of 8.31 metres. Both dwellings have upper level balconies that project either 1.1 or 1.2 metres over the garage below.
Sites and locality
The sites are both rectangular in shape. No 48 (Lot 201) has an area of 307m2 and a street frontage of 7.62 metres. No 48A (Lot 202) is located to the north of No 48 and has an area of 306m2 and a street frontage of 7.61 metres. Both sites are currently vacant.
The parties' planning experts both described the locality in which the subject sites are located. Their descriptions differed slightly but nothing turns on this. In broad terms, the locality can be described as a low to medium density residential area containing mostly single houses. There is a mix of dwelling types which includes original dwellings constructed from the 1920s onwards as well as contemporary dwellings. The mix of development ages and styles means that there is no consistent built form. Lot sizes are generally larger than the subject sites at approximately 450m2 and there are both single and two storey dwellings in the locality.
Planning framework
The sites are zoned Urban under the Metropolitan Region Scheme and Residential with a density coding of R30 under the City of Vincent Local Planning Scheme No. 2 (LPS 2 or Scheme).
Clause 7(1) of LPS 2 states that the Scheme includes: the provisions of the Scheme Text (including the plans, maps, diagrams, illustrations and materials); the Scheme Map; and the deemed provisions set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions).
Under cl 60 of the Deemed Provisions a person must not commence or carry out any works on, or use, land without obtaining development approval unless the development is exempt under cl 61.
Clause 61(c) of the Deemed Provisions states that development approval is not required for the erection of a single house on a lot if State Planning Policy 7.3: Residential Design Codes Volume 1 (R Codes) applies and the development satisfies the deemed-to-comply requirements of the R Codes. It is common ground between the parties that the proposed dwellings do not satisfy all of the deemed-to-comply requirements of the R Codes and therefore are not exempt from the requirement to obtain development approval.
Clause 67 of the Deemed Provisions sets out the matters that the local government (and the Tribunal on review) is to have due regard to when considering an application for development approval, and relevantly includes the following:
(a)the aims and provisions of this Scheme …;
(b)the requirements of orderly and proper planning …;
(c)any approved State planning policy;
…
(e)any policy of the Commission;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(y)any submissions received on the application[.]
Dwelling (single house) is a P use in the Residential zone in accordance with 'Table 1 - Zoning table' of LPS 2 which means that the use is permitted if it complies with the relevant development standards and requirements of the Scheme.
Part 4 of LPS 2 sets out general development requirements and at cl 25 states that the R Codes (as modified by cl 26) are to be read as part of the Scheme. Clause 26 of LPS 2 contains modifications to the R Codes that are not relevant in these proceedings.
The City of Vincent Local Planning Policy No. 7.1.1: Built Form (Built Form Policy) is also relevant to these proceedings and is discussed in more detail below.
Issues
The respondent identified a number of issues to be determined by the Tribunal in its statement of issues, facts and contentions dated 27 September 2019 (Exhibit 3). The applicants disagreed with some of these. Following discussions with the parties at the hearing, the Tribunal is of the view that the main issues to be determined are:
(1)Whether the proposed dwellings satisfy the objectives of the Residential zone, particularly:
(a)whether they facilitate and encourage high quality design with regard to their presentation to the streetscape; and
(b)whether they enhance the amenity and character of the residential neighbourhood in a form that is compatible within the area.
(2)Whether the designs of the proposed dwellings are consistent with sustainability principles, including solar passive design and energy efficiency, and whether approval of the dwellings would be consistent with the design principles and objectives of the R Codes relating to solar access to adjoining sites (cl 5.4.2).
The Tribunal will address each issue in turn.
Whether the proposed dwellings satisfy the objectives of the Residential zone, particularly:
(a) whether they facilitate and encourage high quality design with regard to their presentation to the streetscape; and
(b) whether they enhance the amenity and character of the residential neighbourhood in a form that is compatible within the area.
The objectives of the Residential zone are set out in cl 16(1) of LPS 2 as follows:
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development.
•To promote and encourage design that incorporates sustainability principles, including but not limited to solar passive design, energy efficiency, water conservation, waste management and recycling.
•To enhance the amenity and character of the residential neighbourhood by encouraging the retention of existing housing stock and ensuring new development is compatible within these established areas.
•To manage residential development in a way that recognises the needs of innovative design and contemporary lifestyles.
•To ensure the provision of a wide range of different types of residential accommodation, including affordable, social and special needs, to meet the diverse needs of the community.
The respondent contends that neither dwelling, the subject of these proceedings, satisfies these objectives because:
•The resultant configuration of the garage[s] represents an exceptional, incongruent and dominant form of development in the streetscape that is incompatible with the existing streetscape characteristics noting;
•The garage frontages represent [approximately] 80.2 percent of the total frontage across [each site], with the result that [each] garage presents an unreasonable bulk, scale and dominance in the streetscape;
•Whilst a balcony is placed above, and project[s], in front of the garage [i]t does not extend the full width of the garage and the internal rooms of the development are positioned further behind the setback of the garage in a manner that does not mitigate the appearance and dominance of the garages in the streetscape;
•The entry to the dwelling is recessed well behind the garage and accessed via a narrow portico which would not be visible from the streetscape:
•in the case of No 48 - [t]he reduced visibility of the front door entry to the dwelling exacerbates the dominance of the garages in the streetscape; and
•in the case of No 48A - other than when directly positioned in front of the entry which further exacerbates the dominance of the garages in the streetscape.
(pages 19 and 23, Exhibit 3)
Further, the respondent submits that the proposed dwellings do not enhance the amenity or character of the area nor are they considered to be compatible in the area given the bulk, scale and dominating appearance of the garages. The respondent submits that:
•The character of the development in the area has provided a form of streetscape presentation in which garages do not present with the equivalent bulk, scale and dominance as occurs in this instance and to an extent which is incompatible with the area;
•The design of the development provides a smaller (balcony) element projecting over part of the garage with the bulk of the development positioned behind the garage setback that maintains the dominance and the appearance of the garages which is inconsistent with the existing character and amenity of development in the area.
(page 20, Exhibit 3)
The applicants disagree with these contentions and in their statement of issues, facts and contentions (Exhibit 4) refer to the deemed-to-comply requirements for garage widths in cl 5.2.2 of the R Codes which states that:
C2Where a garage is located in front or within 1m of the building, a garage door and its supporting structures (or garage wall where a garage is aligned parallel to the street) facing the primary street is not to occupy more than 50 per cent of the frontage at the setback line as viewed from the street. This may be increased to 60 per cent where an upper floor or balcony extends for the full width of the garage and the entrance to the dwelling is clearly visible from the primary street (refer to Figure 8c).
The applicants submit that the garages are set back greater than 1 metre behind portions of the building and therefore satisfy these provisions. In addition, the applicants maintain that the respondent had the opportunity to further restrict this requirement in their Built Form Policy (in accordance with cl 7.3.1(a) of the R Codes), and chose not to.
The applicants further contend that the location and width of the proposed garages satisfy the objectives of the Residential zone in terms of good design and compatibility with the character and amenity of the area for the following reasons:
•The garage door is setback further than 1m behind the building to reduce the bulk of the garage on the streetscape.
•The overhanging balcony includes heavy framing to draw attention to the balcony and in turn detract interest from the garage below.
•The development as viewed from the street, incudes a gable roof, red brick, and a taupe colour render, which is representative of other dwellings in the area.
•A tandem car parking arrangement, which would reduce the width of the garage, is not considered to be the best design outcome as it will impact the internal living layout and functionality of the dwellings.
•The garage door is proposed to be made from a visually permeable material, which provides visual depth and reduces the bulk of the garage door on the streetscape.
(para 77, Exhibit 4)
Both parties presented planning evidence. Mr Petar Mrdja, a town planner, appeared as an expert for the applicants and Mr Stephen Allerding, a town planner, appeared as an expert for the respondent. The planning experts produced written witness statements and gave concurrent oral evidence at the hearing.
It was Mr Mrdja's opinion that the proposed developments satisfy the relevant deemed-to-comply provisions of the R Codes and the respondent's Built Form Policy. He was of the view that by satisfying the deemed-to-comply provisions for garage width and street setback, the developments demonstrated that they also satisfied the objectives of the Residential zone.
In relation to garage widths, Mr Mrdja said that the proposed developments satisfied the deemed-to-comply provisions in C2 of cl 5.2.2 of the R Codes because the upper floor balconies projected more than 1 metre forward of the garages below. He said that given there was 'a separation of more than 1m between the building and the garage, there are no further controls to consider in relation to garage width' (para 40, Exhibit 9).
Mr Mrdja assessed the street setback of the proposed developments in accordance with the Built Form Policy which is based on an average street setback calculation using the setbacks of the adjoining five dwellings. In this case he calculated the average street setback to be 7.11 metres. It was Mr Mrjda's opinion that the proposed developments respect the average street setback of adjoining properties by ensuring that the garages are set back 8.2 metres (No 48) and 8.3 metres (No 48A) respectively which is greater than the deemed-to-comply requirements in the Built Form Policy.
Mr Allerding did not address the deemed-to-comply provisions of the R Codes or the Built Form Policy in relation to garage width or street setback in his evidence other than to say that he accepted that meeting the deemed-to-comply provisions is 'a significant measure towards achieving planning objectives' (para 31, Exhibit 8).
The Tribunal accepts Mr Mrdja's opinion in regard to the proposed developments satisfying the deemed-to-comply requirements for street setbacks (as modified by the Built Form Policy), particularly as the respondent presented no differing expert opinion evidence. However, the Tribunal does not accept Mr Mrjda's opinion in regard to the assessment of the garage widths of the proposed developments.
Mr Mrjda argued that the proposed dwelling designs (with balconies projecting more than 1 metre forward of the face of the garages below) means that the garages are not 'located in front or within 1 metre of the building', as referred to by the deemed-to-comply provision for garage width. The Tribunal takes it that he is saying that this means that the deemed-to-comply provision (which restricts garage widths to either 50% or 60% of the frontage at the setback line as viewed from the street) does not apply to these developments and, as there are no other deemed-to-comply provisions, it can be inferred that there are no restrictions on garage widths in this case. Mr Allerding did not dispute this argument.
The Tribunal is of the view that this is an incorrect assessment of the proposed developments under cl 5.2.2 of the R Codes. If, as argued by Mr Mrdja, the deemed-to-comply provisions do not apply to the proposed developments then the developments are to be assessed against the design principles for that element having regard to the objectives. The absence of a relevant deemed-to-comply requirement does not equate to compliance with the deemed-to-comply requirements of that element. The Tribunal agrees with Mr Mrjda that C2 of cl 5.2.2 of the R Codes does not apply to the proposed developments because the design of the dwellings is such that they do not fit the circumstances referred to in the wording of C2. This means that the developments should be assessed against the design principles for this element and the Tribunal is to exercise its judgment in considering the merits of the proposed developments having regard to the streetscape objectives and the garage width design principles.
The objectives for cl 5.2 of the R Codes relate to streetscape and are as follows:
To contribute towards the character of streetscapes including their views and vistas and provides security for occupants and passers-by, a landscape to ensure adequate shade, privacy and open space for occupants, and an attractive setting for the collection of buildings.
The design principles for garage width in P2 of cl 5.2.2 of the R Codes are:
P2Visual connectivity between the dwelling and the streetscape should be maintained and the effect of the garage door on the streetscape should be minimised whereby the streetscape is not dominated by garage doors.
Neither of the planning experts considered the proposed developments specifically against these provisions but they did assess the proposals in terms of their impact on streetscape character with particular regard to the impact of the proposed garage doors on the streetscape.
Mr Allerding was of the opinion that the proposed developments do not achieve a high quality design outcome in terms of their presentation to the street and they fail to appropriately consider their context of place and the existing (and likely future) amenity of the area, primarily because of the dominance of the garages on the streetscape. In his witness statement, Mr Allerding said:
In this instance, the Applicant has elected to subdivide in the manner proposed and has provided a lot orientation that has resulted in a very narrow lot frontage and has chosen to build a design with a double width garage with recessed upper levels, a balcony that does not cover the full width of the garage and a front entry that is significantly recessed and not clearly legible from the street.
It is the combination of these factors, in which the resultant configuration of the garages represents an exceptional, incongruent and dominant form of development in the streetscape that is incompatible with the existing (and likely future) streetscape context.
(paras 37 and 37, Exhibit 8)
Mr Allerding identified properties with garages exceeding 50% of their lot frontage in Annexure SGA2 to his witness statement and at para 26 stated that:
…
•Of the 1200 properties in the area, only 17 properties had garages that were verified by the City of Vincent to exceed 50% of the lot frontage (3 records were not available). This represents only 0.85% of the total lots in the area;
•Of those properties surveyed, the widths ranged from 51% to 66%;
•The average of the exceedances represented 57.59%;
•Of the exceedances identified, the vast majority of those were located in a small section of Lynton street which is located 350 metres away towards the south western corner of the broader locality viewed.
•Only one dwelling in Egina street was identified with a garage width that exceeded 50% (and two with records unverified) of the 115 properties contained within Egina Street.
These figures were not disputed by Mr Mrjda.
In assessing the likely future character and amenity of Egina Street, Mr Allerding found that the lot configuration of Egina Street reflected the original subdivision pattern with lot frontages of between 12.2 metres and 18.3 metres. He said that, with the exception of the review sites and corner lots there are no lots less than 12.2 metres in width between Scarborough Beach Road and Anzac Road. It was Mr Allerding's view that only nine of the 115 residential lots in Egina Street have the potential for further subdivision under the current residential coding of R30. Because of this, Mr Allerding was of the opinion that the 'future redevelopment of these properties is unlikely to result in a form of development where, even with double garages, they would have the effect [of] dominating the streetscape as applies here' (para 34, Exhibit 8).
Mr Mrdja also addressed the design principles contained in Appendix 1 of the Built Form Policy and found that the proposed developments are of a modern and contemporary nature and incorporated design features that are respectful to the character of the area. It was his opinion that there is no distinct built form character that dominates the streetscape but the front façade of the developments incorporate design features which are distinctive of the Mount Hawthorn area such as: red face brick; taupe render; gable roof; and wide verandah piers.
In summary, Mr Mrdja was of the opinion that the size, width and location of the garages as well as the overall design of the dwellings and their presentation to the street satisfy the objectives of the Residential zone because:
•The garage door[s] [are] setback approximately 1.2m from the upper floor balcony of each dwelling. The balcony is open and projects over the ground floor below, which assists in reducing the dominance and perceived width of the garage when viewed from the street.
•The building includes building materials, colours and elements that respect the character of the area. The front façade includes design features and materials such as gable roofs, render and red face brick[work] which are consistent with the character of the locality. There is a strong attempt evident in the design of the building to present a building which is compatible with traditional homes in Mt Hawthorn.
•A combination of various features and building materials on the second storey, including an overhanging balcony, pitched roof and red brick façade is proposed which provides surveillance to the street.
•Whilst it is accepted that the lot is narrow in nature and not common in the locality, it should also be accepted that the building will complement surrounding recent development and improve the current aged streetscape.
•The buildings provide a street setback of 7m and the ability for landscaping to be included within the driveway to contribute to the open nature of the area.
(para 67, Exhibit 9)
Mr Mrjda, in Annexure 2 of his witness statement, identified what he said were 'several examples of garages and carports along Egina Street that are no less 'dominating' than the proposed garage[s]' (para 47, Exhibit 9).
Annexure 2 consists of photographs of 11 houses on Egina Street, five with double garages and six with carports. The photographs illustrate the varied streetscape. There is little consistency in terms of age and style of dwelling - height, materials, setbacks, and overall built form are all varied.
Although Egina Street is not a consistent streetscape, the Tribunal prefers the evidence of Mr Allerding in relation to streetscape and finds that double garage doors are not a dominant element in the existing streetscape. Nor are they likely to become a dominant element in the future, as explained by Mr Allerding's assessment of the likelihood of future subdivisions resulting in lots as narrow as the subject lots (approximately 7.6 metres). The more common 12.2 metre lot frontages in Egina Street allow for dwellings to be designed with double garage doors that are less dominant in the streetscape. The extra lot width provides the space for visible entries as well as other built and landscaped elements that mitigate the appearance of a double garage door.
The Tribunal finds that even at a setback of over 8 metres from the street, the double garage doors of the proposed developments will be dominant elements in the streetscape of Egina Street. This is because despite the applicants' design attempts, the proposed design does not reduce the visual impact of the garage doors on the streetscape. The projecting upper floor balconies, the mix of materials and design details, and the recessed location of the front doors do not minimise the area of the double width garage doors as a proportion of the overall width of the lot, particularly when viewed by pedestrians from ground level. Providing these garage doors in a visually permeable material will not alter the dominance of this element on the front elevation of the dwellings or on the streetscape.
It is the Tribunal's view that the proposed developments do not comply with the design principles in P2 of cl 5.2.2 of the R Codes in relation to garage width because they will have an adverse impact on the streetscape of Egina Street which is not dominated by garage doors. The proposed developments do not satisfy the streetscape objectives of the R Codes because they will make a negative contribution towards the character of the streetscape.
The Tribunal also finds that the proposed dwellings do not satisfy the objectives of the Residential zone because they are not of high quality design in regard to their presentation to the streetscape, nor do they enhance the amenity and character of the residential neighbourhood in a form that is compatible within the area.
Whether the designs of the proposed dwellings are consistent with sustainability principles, including solar passive design and energy efficiency, and whether approval of the dwellings would be consistent with the design principles and objectives of the R Codes relating to solar access to adjoining sites (cl 5.4.2)
The respondent's contentions in relation to this issue are that the proposed developments:
•are not sustainable or energy efficient;
•do not satisfy the aims of the Scheme set out in cl 9 of LPS 2, specifically cl 9(f)(ii); and
•do not satisfy the Residential zone objectives set out in cl 16(1) of LPS 2 relating to sustainability principles.
Clause 9(f)(ii) of LPS 2 provides that one of the aims of the Scheme is:
to co-ordinate and ensure that development is carried out in an efficient, sustainable and environmentally responsible manner which -
…
(ii)promotes an energy efficient environment[.]
The relevant Residential zone objective set out in cl 16(1) of LPS 2 is:
To promote and encourage design that incorporates sustainability principles, including but not limited to solar passive design, energy efficiency, water conservation, waste management and recycling.
Mr Sid Thoo, an architect with experience in energy efficiency and sustainability design, was called by the respondent to give expert evidence in relation to this issue. The applicants did not call an expert in this area.
It was Mr Thoo's opinion that the subdivision, siting and building footprints of the proposed developments have restricted the opportunities for solar passive design and natural daylight for both dwellings. However, as acknowledged by Mr Thoo, the respondent does not have any local planning policies that require specific environmentally sustainable design (ESD) measures for single dwellings.
The Tribunal accepts Mr Thoo's comments on the potential energy ratings of the proposed dwellings and his opinions in relation to the impact of the two storey boundary wall on the property to the south (No 48), particularly in the absence of any contrary expert evidence. That said, the current Scheme aims and Residential zone objectives are very general in regard to sustainability principles, and the energy rating assessments are provided at building licence rather than planning approval stage. The applicants are of the view that they will be able to achieve a Nationwide House Energy Rating Scheme (NatHERS) energy efficient star rating of 6.0 and 7.9 for the two dwellings. Therefore the Tribunal does not believe that there is enough evidence before it to warrant the proposed development being refused on the basis that it may not comply with the general sustainability principles referred to in the Scheme aims and Residential zone objectives.
The respondent's main area for concern in regard to the protection of solar access for adjoining sites is in relation to the impact of the two storey boundary walls between the two dwellings. It is common ground that the two storey boundary wall to No 48A (the northern lot) does not satisfy the deemed-to-comply requirements of cl 5.4.2 of the R Codes and therefore needs to be assessed against the design principles which are:
P2.1Effective solar access for the proposed development and protection of the solar access.
P2.2Development designed to protect solar access for neighbouring properties taking into account the potential to overshadow existing:
•outdoor living areas;
•north facing major openings to habitable rooms, within 15 degrees of north in each direction; or
•roof mounted solar collectors.
The objectives relating to solar access are contained in cl 5.4 of the R Codes and refer to building design as follows:
…
(b)To optimise comfortable living, access to sunlight and solar energy to facilitate sustainable housing development with particular regard for place and local conditions[.]
In regard to the design principles and objectives of the R Codes relating to solar access to adjoining sites, the respondent submits that the proposed dwellings do not meet the design principles because the two storey boundary wall of No 48A results in the significant overshadowing of the southern adjoining site (No 48) and restricts solar access to No 48.
The applicants submit that the proposed dwelling at No 48A satisfies the design principles relating to solar access to adjoining sites because:
•a two storey boundary wall is proposed to be built against the proposed boundary wall on the adjoining property at No 48;
•the southern boundary wall is not proposed to be built alongside any outdoor living spaces of the adjoining property at No 48;
•the overshadowing created as a result of the southern boundary wall does not fall on any existing or proposed major openings at No 48; and
•the proposed development at No 48 does not include any roof mounted solar collectors.
Mr Allerding assessed the proposed developments against cl 5.4 of the R Codes (on the basis that the two dwellings would be constructed simultaneously) and was of the opinion that:
•the two storey development on the northern site (No 48A) limits the opportunities for solar passive design and cross ventilation to occur on the southern lot (No 48);
•where setbacks are provided on the northern lot, they are only very limited at 1.01 metres to the ground floor and 1.2 metres to the upper floor; and
•the southern development has made little to no provision for passive solar orientation within the development which is in part because the northern development has failed to provide adequate protection of solar access for the southern development, but also because the southern development itself has failed to provide effective solar access for itself.
Mr Mrdja was of the opinion that the extent and location of overshadowing from the dwelling at No 48A satisfies the design principles of cl 5.4 of the R Codes because:
•the dwellings have been designed to ensure that overshadowing of No 48 does not impact access to sunlight and ventilation to the primary active outdoor space which is located to the rear of the site;
•the majority of overshadowing falling on the southern site has no notable impact due to the side by side design of the developments and the buildings have been designed together to make efficient use of internal and external space; and
•the overshadowing calculation of 60% of the adjoining property is measured on the surface of the lot which does not take into account or make allowance for a side by side development.
The Tribunal prefers Mr Mrdja's evidence and accepts the applicants' contentions that the proposed developments satisfy the design principles of the R Codes in relation to solar access to adjoining sites. This is primarily because the two dwellings have been designed together and will be constructed simultaneously thereby limiting potential overshadowing impacts that normally would occur when a two storey wall is to be constructed on a southern or northern boundary.
Conclusion
The Tribunal is required to have due regard to the matters set out in cl 67 of the Deemed Provisions when considering whether to exercise its discretion to grant a development approval. The matters identified as relevant to the consideration of these development applications are set out earlier in these reasons and include: the aims and provisions of the Scheme; orderly and proper planning; any local planning policy; the compatibility of the development with its setting including the relationship of the development to development on adjoining land; the amenity of the locality including environmental impacts of the development and the character of the locality; and any submissions received.
The Tribunal has determined that there is not enough evidence before it to warrant the proposed developments being refused on the basis that they do not comply with the general sustainability principles referred to in the Scheme aims and Residential zone objectives. Further, the Tribunal has found that the proposed developments do satisfy the R Code provisions relating to solar access to adjoining sites if a condition is applied to both planning approvals requiring simultaneous construction of the dwellings.
However, the Tribunal has also found that the proposed developments do not comply with the garage width design principles, or the streetscape objectives, of the R Codes because of the dominance of the double width garage doors in the streetscape of Egina Street. The Tribunal also finds that the proposed dwellings do not satisfy the objectives of the Residential zone because the proposals are not of high quality design in regard to their presentation to the streetscape, nor do they enhance the amenity and character of the residential neighbourhood in a form that is compatible within the area.
The Tribunal is of the view that it should not exercise its discretion in favour of the proposed developments. The correct and preferable decision in these circumstances is that both development applications are refused. The Tribunal therefore finds that both applications for review should be dismissed and the decisions of the respondent should be affirmed.
Orders
For these reasons the Tribunal makes the following orders:
DR 168 of 2019 - No 48 (Lot 202) Egina Street, Mount Hawthorn
1.The application for review is dismissed.
2.The decision of the City of Vincent made on 20 August 2019 to refuse development approval for a single house at No 48 (Lot 202) Egina Street, Mount Hawthorn is affirmed.
DR 169 of 2019 - No 48A (Lot 201) Egina Street, Mount Hawthorn
1.The application for review is dismissed.
2.The decision of the City of Vincent made on 20 August 2019 to refuse development approval for a single house at No 48A (Lot 201) Egina Street, Mount Hawthorn is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R MOORE, MEMBER
13 JANUARY 2020
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