| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RUGGIERO and TOWN OF CLAREMONT [2014] WASAT 1 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 13 DECEMBER 2013 DELIVERED : 2 JANUARY 2014 FILE NO/S : DR 256 of 2013 BETWEEN : ELVIO RUGGIERO Applicant
AND
TOWN OF CLAREMONT
Respondent
Catchwords: Town planning Development application Refusal to approve two storey dwelling in residential area Planning Scheme and associated Retention of Residential Character Policy Interpretation of policy design standards Whether proposed development is consistent with character of surrounding development in immediate locality Scale, form and character Streetscape Legislation: Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2013), cl 6.2.1, cl 6.3.1, cl 6.3.2
Town of Claremont Town Planning Scheme No 3, cl 40, cl 40(3), cl 40(5), cl 76, cl 76(2), cl 76(2)(a), cl 77 Result: Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision: This is a review of the respondent's decision to refuse development approval for a two storey dwelling in a residential area in Claremont.
The respondent refused the proposal on grounds that the proposed dwelling was not consistent or compatible with the requirements of the Council's Town Planning Scheme and its associated Retention of Residential Character Policy. Other grounds associated with excessive building height, noncompliant wall setbacks and visual privacy were cited, but recognised by the parties as capable of resolution, if necessary, by minor design modification.
The Tribunal assessed that there was, for the purposes of the Retention of Residential Character Policy, an identifiable, visually attractive enclave of housing in the immediate surrounds of the proposed development, characterised, in the main, by traditional housing appearing as single storey when viewed from the street.
By contrast, the Tribunal found that the imposing form of the proposed two storey development, with its upper floor set forward prominently to the street, would be incompatible with the established scale, form and character of the immediate surrounds. The appearance of the proposed building would therefore adversely affect the residential character of the area, contrary to the intent of the Retention of Residential Character Policy.
The application for review was therefore dismissed and the respondent's decision of refusal was affirmed.
Category: B
Representation: Counsel:
Applicant : In person
Respondent : Mr D McLeod
Solicitors:
Applicant : In person
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This is a review of the decision of the Town of Claremont (Town or respondent) not to grant planning approval for demolition of a single storey house situated at No 37 (Lot 28) Princess Road, Claremont (lot, land or site), and construction, in its place, of a new two storey dwelling. 2 The application for the proposed development was submitted to the respondent by Mr Elvio Ruggiero (applicant) on 10 December 2012. 3 The respondent issued a decision of refusal of planning approval on 2 July 2013. The applicant lodged an application for review of the respondent's decision with the Tribunal on 22 July 2013. 4 In the course of mediation, by order of the Tribunal, the applicant was given leave to modify the proposal by submitting amended plans received by the Tribunal on 2 October 2013. These are the plans now thesubject of this review.
The proposed development and its context 5 The proposed development is to demolish an existing single storey house at the site and replace it with a two storey rendered brick and tile dwelling. The new dwelling will be approximately 384 m² in a combined level floor area and located towards the southern frontage of the lot addressing Princess Road. A double garage is to be located at the rear, or northern, end of the lot, with access from a paved laneway. 6 The site is a rectangular lot with an area of 443 m², a frontage of 11.06 metres and a depth of 40.05 metres. 7 The locality is a well established residential area, mainly characterised by single houses on modest to large lots. A church and a group housing development are located in the vicinity.
Statutory and policy instruments 8 The land is zoned Residential R25 under the Town of Claremont Town Planning Scheme No 3 (TPS 3). 9 Clause 40(3) of TPS 3 prescribes, inter alia, that 'in the Residential Zone a building shall not exceed 6.6m in height'. 10 Clause 76(2)(a) of TPS 3 prescribes, inter alia, that 'the appearance of the building will not adversely affect the character or amenity of the locality and will not clash in harmony with the appearance of adjoining or neighbouring buildings'. 11 In accordance with provisions of TPS 3, the Town has adopted Local Planning Policy 107 - Retention of Residential Character (LPP 107). 12 The objectives of LPP 107 are: 13 The policy requirements of LPP 107 state: Scale and Proportion … (i) New development or alterations/extensions to existing development are to have a comparable scale and proportion to surrounding development in the immediate locality as viewed from the street, unless it can be demonstrated that the surrounding development is not desirable or representative. Uncharacteristic, one-off examples of buildings already occurring in the immediate locality will not be considered in the streetscape assessment (i.e., single dwellings of excessive bulk, scale or height); … Design Standards for Two Storey Residential Development Building bulk shall be generally distributed to ensure that a proposed two storey dwelling, or second storey additions/alterations to an existing dwelling, will not have an overpowering impact on neighbours and the streetscape. In order to fulfil the requirements of this Policy, the Council will require a single residence of two storeys to be designed so as to appear as a predominantly single storey house as viewed from the primary street where the surrounding development in the immediate locality is predominantly single storey (nominally greater than 50%). This includes a requirement for any two storey development to be located in the middle third of the lot. 14 LPP107 further provides that: … where surrounding development is predominantly single storey, the maximum floor area of the footprint of the second storey of the proposed development should not exceed 50% of the footprint of the ground floor dwelling. Where surrounding development in the immediate locality is not predominantly single storey, the footprint of the second storey may be greater than 50% of the footprint of the ground floor dwelling, provided the new development will not, in the opinion of Council, impact negatively on the streetscape, or on the amenity of adjoining properties[.] 15 The Residential Design Codes of Western Australia (2013) (R Codes) provide regulatory guidance on relevant issues associated with visual privacy and lot boundary setbacks.
The respondent's decision 16 The respondent refused the proposed development citing the following reasons: • The proposal does not comply with the front setback requirements under cl 6.2.1 of the R Codes and does not contribute to the desired streetscape. • The development does not comply with the western side boundary setback requirements under cl 6.3.1 of the R Codes and adds bulk to the appearance of the building on this side. • The development does not comply with the western boundary wall requirements under cl 6.3.2 of the R Codes as the storeroom will cause a significant loss of direct natural sunlight to the adjacent bedroom. • The development does not comply with the building height requirements at cl 40 of TPS 3 and no special circumstances to warrant a variation have been provided. • The development does not comply with the protection of townscape character provisions at cl 77 of TPS 3, as it proposes a two storey dwelling with the bulk of the second storey at the front of the lot in a predominantly single storey, heritage listed streetscape. • The development does not comply with LPP 107 on the following grounds: 17 The development is not in accordance with orderly and proper planning of the locality.
Issues 18 It was agreed by the parties and the Tribunal that the principal issue to be considered in the course of the review was whether the development was consistent with cl 76(2) of TPS 3 regarding character and appearance and, for that purpose, whether the development was consistent with LPP 107. 19 A number of other issues associated with the overall height of the building, boundary wall setback and privacy matters are contended but are capable of resolution, if necessary, by minor design modification.
The respondent's argument 20 The respondent argued that the proposed two storey dwelling would not be compatible with the character, form and scale of existing residential development in the locality. Accordingly the application should be refused as being inconsistent with cl 76(2) of TPS 3 and the purpose and objectives of LPP 107. The respondent further argued that the proposed development was not compliant with certain required specifications under TPS 3 and the R Codes, but acknowledged that such issues could be resolved by conditions requiring modest design modifications in the case of an approval by the Tribunal. 21 Mr David Vinicombe, a qualified and experienced town planner employed as Executive Manager Planning and Development at the Town of Claremont, gave evidence on behalf of the respondent. 22 Mr Vinicombe agreed that the fundamental issue for consideration was whether the proposed dwelling was of an appropriate appearance that would not adversely affect the character or amenity of the locality. Guidance for making such an assessment under TPS 3 is provided in the respondent’s LPP 107. 23 Mr Vinicombe highlighted the objective of LPP 107 requiring that new two storey single residential development should be compatible with the character, form and scale of existing residential development in the locality. 24 According to Mr Vinicombe, where surrounding development in the immediate locality is predominantly single storey, the relevant design requirements of LPP 107 prescribe that upper floors of a two storey dwelling should be limited to 50% of the ground floor, should be set back in the middle third of the lot, and should be designed to present a single storey appearance from the street. 25 Mr Vinicombe advised that LPP 107 provided a specific interpretation for 'surrounding development in the immediate locality' as meaning 'five properties on either side of the proposed development on both sides of the street'. 26 Mr Vinicombe's evidence identified 18 properties whichcounted as being within the immediate locality as defined by LPP 107. Of these, eight were single storey, five were two storey but considered to appear as single storey from the street because of the setback of the upper floor, and another five were unequivocally two storey as viewed from the street. On Mr Vinicombe's calculation, 72% of the dwellings are therefore considered to be single storey under the terms of LPP 107. 27 In order to properly reflect the rationale and purpose of LPP 107, Mr Vinicombe explained that the count of single storey dwellings should include those that are two storey but which otherwise appear as single storey when viewed from the street. The alternative interpretation, whereby the policy calculation is based simply on the proportion of single storey and double storey dwellings, would inevitably result in a change of street character, over time, from single storey dwellings, to double storey dwellings having the appearance of single storey, and thence to an unintended potential totality of double storey dwellings, once a majority of these more sensitive developments have occurred in a street. 28 Because the majority of the relevant residences in the immediate locality are, or have the appearance of single storey dwellings when viewed from the street, Mr Vinicombe considered that the two storey form of the proposed development was inconsistent with the requirements of LPP 107 and should therefore be refused. 29 Mr Vinicombe pointed out that LPP 107 makes reference that 'uncharacteristic, one-off examples of buildings already occurring in the immediate locality will not be considered in the streetscape assessment'. Mr Vinicombe expressed the view that even if there were several uncharacteristic buildings, that circumstance should not prejudice the application of LPP 107 if the predominant built form in the locality is single storey or appearing as single storey from the street. 30 In respect of whether the development at the site was compliant with the 6.6 metre height requirement under cl 40(3) of TPS 3, Mr Vinicombe accepted that if the applicant's interpretation of eaves height, measured from the natural ground level to the eaves lining, was correct, then the height of the proposed building would be acceptable. Mr Vinicombe advised, however, that his interpretation was that the eaves height should be measured from natural ground level to a point where the eaves line joins the wall, a point about 300 millimetres higher than the applicant's height measurement. 31 After consultation and computation, both Mr Vinicombe and the applicant's expert witness agreed that if Mr Vinicombe's interpretation of eaves height measurement was appropriate, it would nevertheless be possible for compliance with TPS 3 height requirements to be attained if the floor level of the building was lowered by 200 millimetres. 32 On the question of privacy issues associated with windows overlooking neighbouring property, the only contentious circumstance, outstanding, related to the window of upper floor bedroom 2. Mr Vinicombe affirmed that the window overlooked a sensitive opening on the ground floor of the adjoining premises. Compliance with the relevant privacy requirements of the R Codes could be simply effected by opaque glazing of the window to a height of 1.65 metres.
The applicant's argument 33 The applicant argued that the appearance of the proposed development was consistent with the character, form and scale of residential development in the locality and harmonises with the existing streetscape. As such, the proposed dwelling conforms with the objectives of LPP 107. 34 The proposed development complies with the building height limitation prescribed by TPS 3 and conforms practically with relevant visual privacy requirements of the R Codes. 35 The design of the proposed storeroom boundary wall has been modified to the extent that it will have a reduced height and will not present an unreasonable bulk to the adjoining neighbour in the context of the overall development. 36 For these reasons the proposed development should be approved. 37 Mr Stephen Geoffrey Allerding, a qualified and experienced town planner, provided expert evidence on behalf of the applicant. 38 Mr Allerding agreed that the question of whether the proposed building was consistent with expectations of form and appearance as required by TPS 3 and LPP 107 was the fundamental issue to be addressed by this review. 39 Mr Allerding drew attention to the objectives of LPP 107, with particular reference to the need for development to be 'compatible with the character, form and scale of existing residential development in the locality'. In this regard, Mr Allerding described what he considered to be the relevant locality, framed by Victoria Avenue, Bayview Terrace, Stirling Highway and Bay Road, as featuring a great variety of development forms including: • character homes; • new contemporary homes with mixtures of skillion and pitched roof formations; • apartments and flats; • single and two storey grouped housing; and • a range of non-residential, community and commercial uses. 40 The locality does not, therefore, present with a single intact character, according to Mr Allerding. 41 In this case, the proposed development is not of excessive bulk or scale, or a unique or unusual design configuration. There are, according to Mr Allerding, examples of other development in the area which fit the description of this proposal. 42 Mr Allerding drew attention to the house adjoining at No 39 Princess Road, a two storey dwelling of similar form to that of this application, which was only recently approved by the respondent in 2009. There are other similar examples of two storey buildings, to the west, on both sides of Princess Road. Such examples represent a normal pattern of development in the locality. 43 Mr Allerding identified an area either side of the proposed development along Princess Road which corresponded to the interpretation of the immediate locality defined in LPP 107. Within that surrounding area, Mr Allerding identified 20 buildings, of which 12, or 60%, were two storey. Nine buildings in the surrounding area are heritage listed, of which six are two storey. Other buildings in the area comprise two storey townhouses, late 20th century and new contemporary dwellings, and modern renovations to existing dwellings. 44 Mr Allerding emphasised that the wording of the policy is unqualified as to what constitutes a two storey development, and it is therefore clear that less than 50% of the buildings in the surrounding area are single storey. 45 On the basis of the compatibility of the proposed development with the scale, architectural form, materials, colour and the general appearance of buildings in the surrounding area and the locality, as well as the numerical preponderance of two storey buildings present in the surrounding area, it is demonstrable that the proposed development is consistent with the objectives of LPP 107 and the provisions of cl 76 and cl 77 of TPS 3. 46 Mr Allerding expressed the view that the bulk and scale of the proposed development is comparable and compatible with the adjoining development at No 39 Princess Road, and that the extent of the upper floor level will not impact negatively on the amenity of adjoining properties. 47 Addressing the question of building height, Mr Allerding asserted that the height of the building should be measured from natural ground level to the top of the eaves lining which, in this case, demonstrated that the building did not exceed the 6.6 metre height limitation prescribed by TPS 3. Mr Allerding referred to the relevant building plan details to explain his calculation. In any case, the discrepancy is of a very minor quantum (about 20 millimetres as agreed with the respondent's witness) and the responsible authority is enabled to apply a discretion to allow a height variation in special circumstances under cl 40(5) of TPS 3. 48 Considering the question of the height of the proposed storeroom boundary wall, Mr Allerding advised the Tribunal that the modified plans illustrated a short section of boundary parapet wall to the storeroom dimensioned 3 metres long by 3 metres high. The wall will actually make effective use of space that will increase privacy for both the occupants of the proposed premises and for the adjoining neighbours. It will not have any material effect on direct sunlight to major openings to habitable rooms or outdoor living areas and it will not have any impact on the streetscape. For these reasons the storeroom wall may be considered acceptable in terms of the design principles under Element 5.1.3 - Lot Boundary Setbacks of the R Codes. 49 Mr Allerding referred to the question of privacy associated with the window to bedroom 2. He advised that as the window will only overlook roof and non-habitable outdoor space and windows that are screened with security shutters, there is no reason to require screening of the bedroom window as proposed by the respondent.
Analysis 50 As agreed between the parties, the fundamental issue at stake in this review is the question of whether the proposal is consistent with cl 76(2) of TPS 3 regarding character and appearance and whether, in detail, it is consistent with the respondent's LPP 107. 51 The applicant's argument has been based on demonstrating that the proposed development should firstly be appraised in a wider context of the Claremont locality. In that wider definition of locality there is a broad spectrum of housing form, both traditional and modern, into which the proposed development would be reasonably expected to fit quite unobtrusively. 52 Secondly, the applicant has sought to show that in accordance with the prescribed design standards for two storey residential development of LPP 107, the proposed development is not constrained to the extent that it should not appear as a two storey dwelling when viewed from the street. This is because there is not, in fact, a majority of single storey dwellings in the immediate locality as defined by the policy. 53 The Tribunal accepts that the wider locality context would bear out the applicant's observation of the presence of a broad range of housing form in the area. 54 The applicant's second proposition that the proposed development is not constrained because there is not a majority of single storey dwellings in the immediate locality is strongly contested by the respondent. The core of the respondent's argument is that the expression 'single storey' where it appears in the design standards section of LPP 107, means and includes a residence of two storeys appearing as a single storey house as viewed from the primary street. 55 The Tribunal acknowledges that unless the respondent's interpretation is applied, the design standard mechanism of the policy will, in part, be flawed and its purpose to maintain domestic scale and character in the area will be compromised over time. 56 It is, however, quite clear that the design standards are not written in the way that the respondent describes. The Tribunal considers that the text of the Design Standards should be understood as it is written, and applied and calculated as it requires without qualification. 57 In the Tribunal's opinion, it is not reasonable, even though it may have been intended, to deduce from the Design Standards of LPP 107 that 'single storey development' means a two storey house appearing as a single storey viewed from the street. 58 The Tribunal therefore accepts the applicant's argument that there is not in actual fact a predominance of single storey dwellings in the immediate locality. 59 The implication of acceptance of the applicant's argument is that the proposed development should more appropriately be measured against the design standards where they prescribe that 'where surrounding development in the immediate locality is not predominantly single storey, the footprint of the second storey may be greater than 50% of the footprint of the ground floor dwelling, provided the new development will not, in the opinion of Council, impact negatively on the streetscape, or on the amenity of adjoining properties'. Thus, it still remains for the Tribunal to qualitatively assess the development proposal against this alternate design standard, still bearing in mind the purpose and objectives of LPP 107. 60 The applicant has argued that the constraints for the upper level of the proposed development should not apply and that accordingly it is capable and appropriate for approval. 61 The Tribunal notes that the first objective of LPP 107 requires that '… new two storey, single residential development … is compatible with the character, form and scale of existing residential development in the locality, and harmonises with the existing streetscape'. 62 The Policy Statement logically reflects the above objective, similarly requiring that: … (i) New development ... [is] to have a comparable scale and proportion to surrounding development in the immediate locality as viewed from the street, unless it can be demonstrated that the surrounding development is not desirable or representative. Uncharacteristic, one off examples of buildings already occurring in the immediate locality will not be considered in the streetscape assessment (ie single dwellings of excessive bulk, scale or height)[.] The proposed development thus needs to be measured against these relevant statements of objective, policy and design standard. 63 A view of the site conducted with the parties, as a preliminary to the hearing, was very helpful in order to assess the arguments as to the character of the locality and the immediate surrounds. 64 The wider locality did indeed demonstrate the applicant's observation that there is a broad spectrum of housing form, scale and history in that part of Claremont and that the proposed development would not, in that larger context, be considered as remarkable or out of place. 65 The closer, more immediate, surround, though, does demonstrate a notable enclave of consistent housing form, scale and character that, in the opinion of the Tribunal, warrants recognition, in accordance with the respondent's policy, as an attractive streetscape worthy of maintenance and continuity. In the opinion of the Tribunal, it is this more immediate locality context that is properly relevant to the consideration of compatibility in accordance with the policy, rather than a wider context as suggested by the applicant. 66 The factors accounting for the recognition of the immediate environs include the predominating presence of older, traditional forms of housing, featuring mostly low profile single storey frontages. Steep roof slopes, shady verandahs and fenced or walled front gardens characterise the street from vantage points in the vicinity of the site. A significant number of the houses are recognised for their heritage qualities in the respondent's Municipal Inventory. 67 Although there is occurrence of some contrasting built form (a church, a group housing development), these occurrences are anomalous rather than the norm of the street in this locality. 68 Constructed prior to the adoption of LPP 107, a new dwelling at No 39 Princess Road, on the corner of Princess and Evelyn Road, plainly contradicts the character of the streetscape described above. It is unequivocally perceived as two storey because of the prominence of the upper floor set forward to the street front building line. In this regard, it is quite exceptional to the immediate environs and uncharacteristic of the streetscape. The Tribunal agrees with the argument of the respondent that this building should not be considered typical of the streetscape to be protected. 69 So, while the surrounding development in the immediate locality is not predominantly single storey and the proposed development is not, therefore, so constrained by the policy that there should not be flexibility for the extent of the upper floor, it is, nevertheless, manifestly evident that there is a worthy prevailing scale, form and character of housing that should be acknowledged and maintained in accordance with the objectives of LPP 107. 70 The architectural elevation plans (front and side) illustrate the form of the proposed development and its presentation to Princess Road. The front of the building attains a wall height of over 6 metres at the street setback building line. 71 In the opinion of the Tribunal, the imposing form of the development, with its upper floor set forward prominently to the street, is not consistent with the scale, form and character of the majority of the other houses in the street. 72 In the opinion of the Tribunal, approval of such a building would therefore impact negatively and compromise the streetscape and the amenity of the area. 73 While the proposed development is prospectively compatible with the neighbouring dwelling at No 39 Princess Road, it is clear from LPP 107 that such a circumstance should be disregarded by the Tribunal, because approval of the proposed dwelling in its present form would serve to reinforce the discordant presence of an otherwise one-off example of building form quite uncharacteristic of the immediate streetscape. 74 Thus, measured against the relative objectives, policy and design standards of LPP 107 the proposed development falls short of achieving compatibility with the scale, form and character of surrounding development in the immediate locality. 75 It is also evident that the proposed development is inconsistent with cl 76(2)(a) of TPS 3 whereby, for the same reasons as discussed above, the appearance of the proposed building will adversely affect the character of the locality. 76 These fundamental failures of compatibility of the proposed development against the requirements of TPS 3 and the respondent's adopted LPP 107, are fatal to the prospects of a reasonable and proper planning approval. In such circumstances it will not be necessary for the Tribunal to further address or consider the remaining issues debated by the parties associated with building height, the storeroom wall or overlooking bedroom window privacy concerns.
Conclusion 77 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the development application for a two storey dwelling at the site should be dismissed.
Order The Tribunal therefore makes the following orders: 1. The application for review is dismissed. 2. The decision of the respondent made on 2 July 2013 to refuse development approval for demolition of a single storey house situated at No 37 (Lot 28) Princess Road, Claremont, and the construction in its place of a new two storey dwelling, is affirmed. |