Rossi and City Of Bayswater
[2007] WASAT 136
•30 MAY 2007
ROSSI and CITY OF BAYSWATER [2007] WASAT 136
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 136 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:355/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MS R MOORE (SENIOR SESSIONAL MEMBER) | 30/05/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Condition 1 and condition 11 are deleted | ||
| B | |||
| PDF Version |
| Parties: | ERIC ROSSI CITY OF BAYSWATER |
Catchwords: | Town planning Condition of development approval Parapet boundary walls Setback of boundary wall Height and length of boundary wall Neighbour consultation Objections by adjoining landowners Streetscape Whether any significant adverse effect on the amenity of the adjoining property Whether the boundary walls satisfy the Performance Criteria of the Residential Design Codes |
Legislation: | City of Bayswater Town Planning Scheme No 24, cl 8.5.2.2 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252 Residential Design Codes of Western Australia (2002), cl 2.6.2, cl 3.3.2, cl 3.3.2 P2 |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 26 September 2006 to grant conditional development approval for the construction of two grouped dwellings at Lot 205 (No 67) Salisbury Street, Bedford is varied as follows:,(a) Condition No 1 is deleted.,(b) Condition No 11 is deleted. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ROSSI and CITY OF BAYSWATER [2007] WASAT 136 MEMBER : MS R MOORE (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 30 MAY 2007 FILE NO/S : DR 355 of 2006 BETWEEN : ERIC ROSSI
- Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning - Condition of development approval - Parapet boundary walls - Setback of boundary wall - Height and length of boundary wall - Neighbour consultation - Objections by adjoining landowners - Streetscape - Whether any significant adverse effect on the amenity of the adjoining property - Whether the boundary walls satisfy the Performance Criteria of the Residential Design Codes
Legislation:
City of Bayswater Town Planning Scheme No 24, cl 8.5.2.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252
(Page 2)
Residential Design Codes of Western Australia (2002), cl 2.6.2, cl 3.3.2, cl 3.3.2 P2
Result:
Application for review allowed
Condition 1 and condition 11 are deleted
Category: B
Representation:
Counsel:
Applicant : Mr R Brooks (Acting as Agent)
Respondent : Self-represented
Solicitors:
Applicant : Ron Brooks Planning (Town Planners)
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of two conditions imposed by the City of Bayswater on a development approval for two new dwellings at Lot 205 (No 67) Salisbury Street, Bedford. The conditions required two garage walls to be set back 1.0 metre from the side boundary and the provision of nib walls to the store rooms.
2 The City of Bayswater and two of the adjoining landowners were concerned that the boundary walls would have an adverse effect on the amenity of the adjoining property. It was agreed by both parties to delete the condition relating to store room nib walls.
3 The Tribunal found that there was no significant adverse effect on the amenity of the adjoining property.
4 The application for review was allowed and condition 1 and condition 11 deleted.
Introduction
5 These proceedings involve an application brought by Mr Eric Rossi (applicant), pursuant to s 252 of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Bayswater (respondent, City or Council) made on 27 September 2006 to grant conditional development approval for two grouped dwellings at Lot 205 (No 67) Salisbury Street, Bedford.
6 The conditions under review are:
"1. The two boundary parapet walls (to the garages of the dwellings) be setback 1.0 [metre] from the boundary."
- and
"11. Provision of a minimum 500 [millimetre] nib to delineate the store rooms from the garages of the proposed dwellings."
(Page 4)
Site and locality
8 The site is located at No 67 Salisbury Street, Bedford and is described on Certificate of Title Vol 94, Folio 59A as being a portion of Swan Location W and being part of Lot 205 on Plan 1146 (subject site or site).
9 The site is rectangular in shape with a width of 18.1.0 metres, a length of 47.89 metres and an area of 867 square metres. It has two street frontages, one to Salisbury Street and one to Nelson Street, both of which are 18.1.0 metres. There is a fall of approximately 0.6 metres across the site from the Salisbury Street frontage to the Nelson Street frontage. The site is currently vacant.
10 The site adjoining the subject site to the north-west contains a two storey multiple dwelling consisting of eight units. This building is set back approximately 8.0 metres from the common boundary, 9.5 metres from Salisbury Street and 14.0 metres from Nelson Street.
11 The adjoining property to the south-east of the subject site is a two storey grouped dwelling containing two units. It has frontage to both Salisbury Street and Nelson Street.
12 From the evidence and photographs supplied by Mr Doyle, the respondent's expert witness, the dwellings opposite the subject site in both Salisbury Street and Nelson Street are a mix of single storey 1930s bungalows (some with second floor extensions) and single and two storey infill developments.
Planning framework
13 The site is zoned "Urban" under the Metropolitan Region Scheme (MRS). The site is zoned "Medium Density Residential" and has a residential density coding of "R25" under the City of Bayswater Town Planning Scheme No 24 (TPS24 or the Scheme).
14 Clause 8.5.2.2 of the Scheme provides that "unless otherwise provided for in the [S]cheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provision of those Codes".
15 Clause 3.3.2 of the Residential Design Codes of Western Australia (2002) (Codes) provides both Acceptable Development standards and Performance Criteria for buildings built up to a boundary. The Acceptable Development standards state:
(Page 5)
- "A2. Except where otherwise provided for in an adopted Local Planning Policy, walls built up to a boundary behind the front setback line within the following limits, subject to the overshadowing provisions of Element 9:
...
ii. In areas coded R20 and R25, walls not higher than 3.0 [metres] with an average of 2.7 [metres] up to 9[.0 metres] in length up to one side boundary;"
17 The policy states that:
" ... no wall to any type of residential development may be built within 1.0 [metre] of a boundary other than ... with the written approval of the adjoining affected landowner or Council approval."
18 Where a boundary wall satisfies the Acceptable Development standards of cl 3.3.2 of the Codes, it shall not be deemed "as of right". Written comments are to be sought by the applicant from all adjoining neighbours. Where the proposed boundary wall does not comply with the Acceptable Development standards of cl 3.3.2, the proposal will be referred to the next Council meeting for determination.
19 Clause 2.6.2 of the Codes allows for local planning policies to be prepared for boundary walls that contain provisions that are more or less stringent than the Codes.
Proposed development
20 The proposed development involves the construction of two new, two storey dwellings on a vacant lot. The plan of each dwelling is essentially the same although mirrored on the site with one dwelling fronting Salisbury Street and the other fronting Nelson Street.
21 A proposed new boundary divides the original block into two survey strata lots with 18.1.0 metre street frontages, 23.94 metre depth and an area of 433.31 square metres each.
(Page 6)
22 Each house consists of three bedrooms, ensuite, bathroom, "wc", laundry, living room, kitchen, open plan dining/family room, double garage, store, loft and roofed al fresco area.
23 The garage of each house is located to the north-east of the subject site with a parapet wall located on the boundary. The two proposed parapet walls are to be 9.4 metres in length and 3.4 metres in height above the natural ground level.
City of Bayswater's decision
24 A development application for two grouped dwellings on the subject site was received by the City on 4 April 2006. Subsequently, written submissions were received by the City from two of the adjoining landowners in relation to the proposed parapet boundary walls.
25 The owners of Unit 5 and Unit 8, 67-71 Salisbury Street (the eight unit grouped dwelling to the north-east of the subject site) objected on the basis that the height and length of the two proposed parapet walls would be visually dominant and would have a detrimental effect on the streetscape.
26 The development application was the subject of a report prepared by a Council officer and submitted to the Ordinary Council Meeting on 26 September 2006. The report recommended granting development approval subject to standard planning conditions on the basis that the proposed development complied with TPS 24, Council policies and the Codes with the exception of the design elements relating to boundary walls, open space and street setback which were considered to meet the Performance Criteria of the Codes.
27 The Council Committee (Committee) considered the Council officer's report and the objections from two of the adjoining landowners. Because of concerns over the impact of the parapet wall on the amenity of the adjoining property, the Committee granted planning approval for the construction of two grouped dwellings on the subject site with an additional condition.
28 The additional condition is:
"1. The two boundary parapet walls (to the garages of the dwellings) be [set back] 1.0 [metre] from the boundary."
(Page 7)
Neighbour consultation
29 Policy TP-P2.8 requires the applicant to seek the adjoining landowners' written comments in relation to all walls closer than 1.0 metre to a boundary. The Codes discuss the principles of consultation under General Provisions 2.5 Neighbour Consultation where it is stated that:
"The opinions of affected adjoining property owners can inform, but cannot be a substitute for, the exercise of professional advice by Council's officers."
The issues
30 The following two issues arise for determination in this review:
1. Whether the two proposed boundary walls will have any significant adverse effect on the amenity of the adjoining property.
2. Whether the two proposed boundary walls satisfy the Performance Criteria for Buildings on Boundary under the Codes.
31 The Tribunal will address each issue in turn.
Whether the two proposed boundary walls will have any significant adverse effect on the amenity of the adjoining property
32 The respondent's Statement of Issues, Facts and Contentions, dated 1 February 2007, contends that the proposed boundary walls will have a negative impact on the amenity of the adjoining property by way of excessive visual bulk.
"Council considered that the dimensions and bulk of the walls would create a visual barrier that would be excessive and detrimental to the peaceful enjoyment of the neighbouring property."
33 In the applicant's Statement of Issues, Facts and Contentions, Mr Brooks, the applicant's expert withness, contends that the proposed boundary walls are not excessively long or high and "will be insignificant compared to the height and massing of the existing multiple dwelling development on the adjoining lot".
(Page 8)
34 The Council considers that a setback of 1.0 metre will reduce the impact on the amenity of the adjoining property and will offer an opportunity to provide screening to reduce the impact on the streetscape.
35 When considering the height of the wall, the Council compared it with the 1.8 metre height of a standard boundary fence, whereas Mr Brooks notes that under Acceptable Development standards of the Codes, a wall 9.0 metres long and 7.0 metres high could be constructed within 1.2 metres of the boundary.
36 The Council officer's report states that "the length and height of the wall is not expected to contribute excessively to the bulk of the building, nor have a detrimental visual impact to either the street or the adjacent property".
37 Mr Doyle offers no evidence to show how the adjoining property is significantly adversely affected other than in respect to streetscape. His evidence is that the siting of the existing two storey building on the adjoining site with side setbacks of approximately 8.0 metres and street setbacks of approximately 9.5 metres to Salisbury Street and 14.0 metres to Nelson Street creates an open streetscape and the proposed boundary walls will be viewed from both streets.
38 The Tribunal considers that any built structure viewed from the street does not imply an adverse effect on either the streetscape or the adjoining property. As the Council officer's report stated:
" ... the proposed dwellings are considered to contribute positively to the streetscapes of both Nelson and Salisbury Streets, with good passive surveillance of the streets from the dwellings and adequate areas of open space for landscaping and privacy."
39 There is no argument with regard to overshadowing or loss of views from the adjoining property. With regard to visual bulk, the Tribunal prefers the evidence of Mr Brooks and finds that the amenity of the adjoining property is not significantly adversely affected. The wall closest to Nelson Street abuts an unenclosed grassed area which is open to the street. The wall closest to Salisbury Street is adjacent to a car parking area. As noted earlier, the building on the adjoining property is well set back from the common boundary.
(Page 9)
Whether the two proposed boundary walls satisfy the Performance Criteria for Buildings on Boundary under the Codes
40 Clause 3.3.2 P2 of the Codes sets out the Performance Criteria for Buildings on Boundary:
"Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
• make effective use of space; or
• enhance privacy; or
• otherwise enhance the amenity of the development; and
• not have any significant adverse effect on the amenity of the adjoining property; and
• ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."
41 It has been established that the proposed boundary walls will not have any significant adverse effect on the amenity of the adjoining property. (Issue 1)
42 There is no overshadowing on the adjoining property due to its location to the north-west of the subject site. The closest section of the two storey building is set back 8.0 metres from the common boundary with the subject site. It is a matter of fact that the proposed boundary walls do not restrict direct sun to major openings to habitable rooms or outdoor living areas of the adjoining property.
43 In order to satisfy the Performance Criteria, one of the first three criteria and both of the last two criteria need to be satisfied.
44 With regard to the issue of effective use of space, both the Council officer's report and Mr Brooks agree that the proposed development makes effective use of space. Mr Brooks argues that setting the garage walls 1.0 metre from the boundary will create an unusable area which is difficult to landscape due to lack of sunlight.
45 Mr Doyle argues that as the two proposed lots are larger than the minimum lot size required by the R25 coding and have larger street
(Page 10)
- frontages than the minimum, then setting the garage walls on the boundary is not necessary in order to make effective use of space.
46 Mr Doyle also argues that the cumulative effect of the variations from the Acceptable Development standards for the proposed boundary walls, minimum open space and average street setback suggest an overdevelopment of the site.
47 The Tribunal disagrees with both these arguments. Firstly, all developments can, and should, be designed to make effective use of space and secondly, the variations to open space and street setback have each been found to satisfy the Performance Criteria of the Codes by the Council. The issue of whether the boundary walls satisfy the Performance Criteria is not dependent on whether other design elements satisfy the Performance Criteria or the Acceptable Development standards.
48 The Council officer's report also states that the walls provide the opportunity to enhance the privacy between the two sites. Mr Brooks is of the opinion that the boundary walls will enhance privacy and provide sound attenuation from traffic on the adjoining property.
49 In the respondent's Statement of Issues, Facts and Contentions, dated 1 February 2007, it is stated that the Council does not consider that the proposed boundary walls enhanced privacy or the amenity of the development in any way.
50 The Tribunal agrees with Mr Brooks and the Council officer's report, and finds that the proposed boundary walls do make effective use of space.
51 The Tribunal finds that the two proposed boundary walls satisfy the Performance Criteria for "Buildings on Boundary" under the Codes (cl 3.3.2 P2).
Conclusion
52 The Tribunal has determined that the two proposed boundary walls satisfy the Performance Criteria for Buildings on Boundary under the Codes. In particular, the proposed walls will not have any significant adverse effect on the amenity of the adjoining property, notwithstanding the concerns of the respondent and the objections of two of the adjoining landowners.
53 It follows that the application for review should be allowed and condition 1 should be deleted from the development approval.
(Page 11)
Orders
54 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 26 September 2006 to grant conditional development approval for the construction of two grouped dwellings at Lot 205 (No 67) Salisbury Street, Bedford is varied as follows:
a) Condition No 1 is deleted.
b) Condition No 11 is deleted.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER
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