| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SALIBA and TOWN OF BASSENDEAN [2013] WASAT 22 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 1 FEBRUARY 2013 DELIVERED : 26 FEBRUARY 2013 FILE NO/S : DR 47 of 2012 BETWEEN : CARMEL CHARLES SALIBA Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords: Development application - Grouped dwellings - Town of Bassendean - Whether proposed development complies with Energy Efficiency Design Policy of the local government - Whether proposed development conforms with Residential Design Codes of Western Australia (2010) - Adequacy of plans and of Energy Efficiency Design Policy Checklists - Site area - Outdoor living area - Boundary setback - Application for review dismissed Legislation: Residential Design Codes of Western Australia (2010), Table 1
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State Administrative Tribunal Act 2004 (WA), s 31(1)
The Town of Bassendean Local Planning Scheme No 10, cl 5.2.2 Result: Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision: This is a review of the Town of Bassendean's decision to refuse development approval for three grouped dwellings in Eden Hill, Western Australia.
The Town of Bassendean reasoned that the proposed development should not be allowed because it did not demonstrate an acceptable level of energy efficiency as required by its local planning policy, and because the proposed development failed to conform with a range of requirements of the Residential Design Codes of Western Australia (2010).
The applicant sought to show that the proposed development was capable of acceptable energy efficiency by submission of a checklist as required by the policy, explanation of particular energy efficiency arrangements within the proposed dwellings, and by supplementary undertakings to incorporate solar panels and hot water systems in each of the dwelling units.
The applicant further sought to show that the plans of the proposed development had been revised and improved in response to the Town of Bassendean's concerns in relation to non-conformity with the Residential Design Codes of Western Australia (2010).
The Tribunal found that it could not be concluded that the proposed development met the energy efficiency objectives of the local policy because the necessary checklists for each dwelling had not been submitted. In the opinion of the Tribunal, the configuration of at least one of the proposed units did not demonstrate the required characteristics for energy efficiency.
The Tribunal further found, by comparison of the plans with the provisions of the Residential Design Codes of Western Australia (2010), that aspects of the proposed development did not conform with fundamental objectives of the Residential Design Codes of Western Australia (2010) in relation to site area, outdoor living area and boundary setback.
On the basis of these findings, the Tribunal determined that the application for review should be dismissed.
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Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr B Reed (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Town of Bassendean
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This is a review of the Town of Bassendean's (respondent's) decision to refuse development approval for three grouped dwellings on No 37 (Lot 222) Schofield Street, Eden Hill, Western Australia (the site, land, or lot). 2 Mr C Saliba (applicant) submitted the original application to the respondent on 14 April 2011. Revised plans to accompany the application were submitted on 1 February 2012. 3 On 8 February 2012, the respondent issued its decision of refusal with relevant reasons. 4 The applicant lodged an application for review of the respondent's decision with the Tribunal on 23 February 2012. 5 On the application heard before Member Ms R Moore on 31 May 2012, it was ordered, pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), that, subject to the submission, by 13 July 2012, of amended plans suitable for assessment, and completion of an 'Energy Efficient Design Policy Credit Points Checklist' (checklist) for each building, the respondent was invited to reconsider its decision. 6 The respondent advised by letter of 20 July 2012 that amended plans had not been lodged by the due date and that, accordingly, the respondent would not be reconsidering its decision.
The proposed development and its context 7 The site is located in an established residential area, generally characterised by single dwellings. 8 The lot is situated on the southeast corner of Schofield Street and Second Avenue. It has a 38.3 metre northerly frontage to Schofield Street, an 8.53 metre corner truncation, and an 11.53 metre western side boundary to Second Avenue. The eastern side boundary is 26.15 metres, and the rear southern boundary is 42.10 metres. The total area of the lot is 910 square metres 9 There is a 3 metre fall across the lot from east to west. (Page 5)
10 The land is presently occupied by a single storey house constructed of brick and tile on limestone footing, situated slightly east of the centre of the lot. 11 The applicant's proposed development is to construct a new two storey, attached dwelling (Unit 1) on the eastern side of the existing house, and a further single storey freestanding dwelling (Unit 3) on the western side. The existing house (Unit 2) is to be modified by the addition of an 'alfresco' area to the rear (southern side) and a carport at the front (northern side). 12 Effectively, the proposal is to establish three 'grouped dwellings' on the land.
Statutory and policy instruments 13 The locality in which the land is situated is zoned Residential with an assigned split density code of R20/30 under The Town of Bassendean Local Planning Scheme No10 (LPS 10). 14 Clause 5.2.2 of LPS 10 requires the development of land for residential purposes to conform with the Residential Design Codes of Western Australia (2010) (Codes). 15 Under the auspices of LPS 10, the respondent has adopted Local Planning Policy No2 - Energy Efficient Design (LPP 2 or Policy). 16 The Policy provides that it is applicable 'to all land where split density codes prevail and the application for the highest density code is being considered by Council'. 17 The Policy provides a procedure for assessment of energy efficiency of residential development by means of scoring credit points against particular energy efficiency design criteria set out in the form of a checklist. The checklist requires a minimum aggregate score of 70 out of 100 points in order for a development proposal to qualify for approval at the higher density of a split density code.
The respondent's decision 18 The respondent refused the application on the following grounds: 1. The plans submitted for the retained dwelling and two additional dwellings do not comply with the Town of Bassendean Local Planning Policy No. 2, 'Energy Efficiency Design Policy'. (Page 6)
2. The courtyard to unit one does not provide direct access from a habitable room as required under design element 6.4.2 (A1) of the Residential Design Codes 2010. 3. Proposed lot one of the stratasubdivision has an illogical lot configuration and has been contrived to bring about technical compliance without any planning benefit to the development or increased amenity to either units 1 & 2. 4. The setback to the eastern boundary for the combined wall length of proposed unit 1 and associated carport is less than the 1.5metres required by design element 6.3.1 (A1) (i) and Figure 3 of the Residential Design Codes 2010. 5. The proposed carport to the retained dwelling indicates a parapet wall within the front setback area which obstructs the view between the dwelling and the street and is contrary to design element 6.2.3 (A3.4) of the Residential Design Codes 2010. 6. Unit 1 does not provide two onsite car parking bays in accordance with design element 6.5.1 (A1) of the Residential Design Codes 2010.
Issues 19 The issues to be considered in determining this application are: The respondent's argument 20 The respondent argued that the applicant had failed to demonstrate that the proposal complies with LPP 2 or with the Codes. 21 Mr B Reed, employed as Manager, Development Services for the Town of Bassendean, provided evidence on behalf of the respondent. 22 Mr Reed stated that the applicant had not submitted plans of the development suitable for proper assessment, including the requisite checklist for each dwelling. 23 An assessment of the proposal by the respondent indicates that it would score less than 50 points against the energy efficiency design (Page 7)
criteria identified in the standard checklist. The required minimum score for acceptability is 70 points. 24 Mr Reed set out the respondent's assessment as follows:
| Design Element | Credit Points Available | Credit Points Claimed | Credit points awarded and reason | | 1. | Orientation (longest axis east west)[.] | 10 | 10 | 6.6 Only two of the units have their longest axis east west[.] | | 2. | North facing courtyard, and main living areas with windows occupying a min 50% of the north facing wall[.] | 25 | 20 | 8 Only one courtyard is provided to the north. Only [U]nit 2 has 50% of windows living areas facing north[.] | | 3. | Windows to bedrooms minimised in area and south facing[.] One bedroom window is permitted to face north[.] | 15 | 15 | 10 Unit 1 has two bedroom windows facing north, and the windows are not minimised in area. | | 4. | Eastern and western walls are either blank or only have openings to nonhabitable utility rooms[.] | 20 | 15 | 15 | | 5. | 60% of all habitable rooms shall be cross ventilated. | 10 | 10 | 0 [T]he requirements of the Policy go beyond the [B]uilding Code of Australia[.] [N]o evidence has been provided of cross ventilation[.] | | 6. | The provision of either a solar pergola or solar hot water heating system[.] | 10 | 10 | 10 [L]etter from applicant confirming that solar hot water heating systems will be provided[.] | | 7. | Landscaping design and plant selection to provide shading to courtyard areas in summer only and demonstrate compliance with low water use gardening [principles]. | 10 | 10 | 0 Courtyards x2 provided on southern side of houses[.] | TOTAL | 100 | 90 | 49.6 | (Page 8)
25 In respect of assessment of the proposal against the performance criteria and acceptable standards of the Codes, Mr Reed cited a number of aspects of noncompliance. These include the following: • In Unit 1, the effective area of the courtyard, above the minimum width of 4 metres, is only 17.21 square metres instead of 24 square metres. • The site area of Unit 1 is 245.03 square metres, well below the minimum requirement of 270 square metres prescribed by the Codes. • The width of the car spaces proposed for Unit 1 does not comply with the minimum required by the Codes. • The carport for Unit 1 situated in the street setback area occupies more than 50% of the dwelling frontage and therefore does not comply with the requirements of the Codes. • The parapet wall to the proposed carport in the street setback for Unit 2 obstructs the view between the dwelling and the street contrary to the requirements of the Codes. • The proposed driveway to Unit 2 is not long enough to accommodate two tandem parking spaces. • The outdoor living areas for Unit 1 and Unit 2 are below the dimensions required by the Codes. • Unit 2 and Unit 3 are not provided with adequate storage areas as required by the Codes. • The rear setback of Unit 3 does not comply with the requirements of the Codes.
The applicant's argument 26 The applicant submitted that the plans for the proposed development had been revised in accordance with the respondent's concerns and were compliant with, or capable of compliance with LPP 2 and the Codes. 27 No witness was called by the applicant to present evidence at the Tribunal hearing; thus, the evidence relied on for this review is derived (Page 9)
from the plans accompanying the application and associated correspondence and documents submitted to the Tribunal. 28 Addressing the requirements of LPP 2, the applicant submitted a checklist scoring 70 credit points as follows:
| Design Element | Credit Points Available | Credit Points Claimed | Comments | | 1. | Orientation (longest axis east west)[.] | 10 | 10 | The longest axis of existing building is EAST, WEST. | | 2. | North facing courtyard, and main living areas with windows occupying a min 50% of the north facing wall[.] | 25 | 20 | Windows north facing to living rooms[.] ([indecipherable] % of wall façade. Existing 2300 mm porch is north facing with direct access to living areas. | | 3. | Windows to bedrooms minimised in area and south facing[.] One bedroom window is permitted to face north[.] | 15 | 15 | Bedrooms 1, 2, 3 all face south. No bedrooms face the north. | | 4. | Eastern and western walls are either blank or only have openings to nonhabitable utility rooms[.] | 20 | 15 | Eastern wall has no openings. Western wall window open into utility rooms consisting of the laundry, kitchen and bathroom[.] | | 5. | 60% of all habitable rooms shall be cross ventilated. | 10 | 10 | Cross ventilation as per BCA Reg.
Ventilation path, no more than 10 m in length.
Ventilation path, to go through no more than two openings (doorways)[.] | | 6. | The provision of either a solar pergola or solar hot water heating system[.] | 10 | - | - | | 7. | Landscaping design and plant selection to provide shading to courtyard areas in summer only and demonstrate compliance with low water use gardening principals. | 10 | TOTAL | 100 | 70 | Require min 70 out of 100 to qualify for higher density code[.] | (Page 10)
29 The applicant has also written an undertaking to install ceiling insulation, solar electric panels and solar hot water heating systems to each of the units. These measures would further improve the energy efficiency of the development. 30 Letters written by the applicant in relation to items of contention raised by the respondent identify the following statements or responses: • The living room at Unit 1 has a large sliding door effecting access to the 'alfresco' outdoor living area (which complies with the Code requirements). • The site area for Unit 1 is 240.03 square metres. The 25 square metre shortfall was taken from the back of the existing house. • Permission for the proposed reduced side setback for Unit 1 has been obtained from the owner of the property on the left hand (eastern) side. • The parapet wall for the carport to Unit 2 does not obstruct the view between street and dwelling. It provides privacy between the adjacent units. • Unit 1 is provided with three car parking bays. • Unit 2 has 5 square metres of storage under the back verandah. • Unit 3 has 4 square metres of storage accessible from outside. • Crossovers will be standard size and will not affect any street trees. • The carport to Unit 1 provides two spaces and leaves a 4.8 metre clearance to the right hand side of the unit.
Analysis 31 The issues that arise in this review are addressed in turn. 32 Firstly, does the proposal satisfactorily meet the objectives of LPP 2? (Page 11)
33 It is clear (and was confirmed at the hearing by both Mr Saliba and Mr Reed) that there has not been a submission of checklists for each individual grouped dwelling involved in this proposal. This is a stated requirement of the assessment procedure of LPP 2. 34 The respondent has set out an overall checklist score that indicates that the development would, in its assessment, fail to achieve the necessary 70 points demonstrating acceptable energy efficiency. Key areas of design inadequacy are the circumstance of two out of three outdoor living areas not being north facing and two out of three units having living areas without adequate north facing windows. 35 The applicant, on the other hand, has submitted a checklist claiming 70 points. It appears to relate to Unit 2, the existing dwelling. Notably, it is claimed that there are north facing windows to living rooms, and the front porch to the dwelling is north facing with access from the living area. With undertakings to supply solar panels, solar hot water and low water use landscaping, this checklist score would increase to 90 points. 36 The Tribunal's assessment of the energy efficiency of the whole development proposal is hampered by the lack of individual checklists for each unit and the lack of systematically organised supporting information from the plans. 37 It is apparent from the plans, however, that there are certain deficiencies in meeting the energy efficiency criteria of LPP 2. For example, Unit 1 has its longest axis northsouth, its courtyard faces south, and windows to the main living areas do not occupy 50% of the north facing wall. Unit 1 also has two (out of three) bedrooms with north facing windows. Out of the 50 points assigned to these particular design elements on the points checklist, it is difficult to credit any in favour of Unit 1. It is therefore hard to conceive that Unit 1 could muster the 70 points out of 100 points necessary to achieve acceptability in terms of energy efficiency. 38 The Tribunal is mindful that LPP 2 requires that each dwelling within the group must separately achieve the minimum of 70 points to demonstrate energy efficiency. 39 Based on the information provided to date, the Tribunal is uncertain, but has serious doubts, that each and all of the units would achieve the necessary energy efficiency scores to meet the objectives of LPP 2. (Page 12)
40 Turning to the second issue, the Tribunal considers whether the proposal satisfactorily conforms with the objectives of the Codes. 41 The respondent has listed a series of deficiencies of the proposed development against compliance with requirements of the Codes, some of which are minor and some major. 42 It is possible that some minor deficiencies could be rectified by simple design modifications but, for the purposes of this review, it is sensible to concentrate on and examine those claimed deficiencies that are of a more fundamental nature. 43 The respondent pointed out that the minimum site area per dwelling should be 270 square metres and that the site area for Unit 1 was only 245.03 square metres, inclusive of an area of land subtracted from the rear of Unit 2. 44 The applicant interpreted the revised plans as adding 25 square metres from the rear of Unit 2 to the original 245.03 square metres, thus achieving the required 270 square metres. 45 Addressing these claims, the Tribunal notes that the submitted site plan for the proposed development illustrates the configuration of the intended site area for Unit 1, inclusive of the area at the rear of Unit 2. The area is denoted as 245.03 square metres. 46 Table 1 of the Codes prescribes that the minimum site area per dwelling, at a density of R30, should be 270 square metres. 47 There appears to be no feasible ground for a concession or variation of the minimum site area requirement. 48 In the circumstances, this is considered by the Tribunal to be a failure of the proposed development to meet the site area requirements of the Codes. 49 The respondent has also claimed that the outdoor living areas for Unit 1 and Unit 2 are below the dimensions required by the Codes. 50 Examining this claim, the Tribunal notes the following: 1) The courtyard at the rear of Unit 2 is not directly accessible from a habitable room as required by the Codes; (Page 13)
51 The front porch of Unit 2 is accessible from a habitable room and takes advantage of the northern aspect, but does not achieve the minimum 4 metre width dimension required by the Codes. 52 In these circumstances, the Tribunal concludes that the outdoor living areas of Unit 2 fail to meet the requirements of the Codes. 53 In the case of Unit 1, the area of the courtyard is not made clear on the plans. 54 The configuration of the outdoor living area is roughly 'L' shaped and would appear to struggle to achieve the required 24 square metre area associated with 4 metre length and width dimensions. The respondent measures the effective area as 17.21 square metres. 55 In the absence of clearly drafted, accurate and summarised plans, it is nevertheless open to some speculation as to the precise effective area of the Unit 1 courtyard. 56 The onus of demonstrating compliance with the outdoor living area measurement requirements for Unit 1 belongs, however, to the applicant. Compliance remains to be demonstrated to the satisfaction of the Tribunal. 57 It is apparent, though, from this examination, that the same Unit 1 courtyard, located on the south side of the proposed two storey building, is not suitably positioned to achieve the Code's objectives of being open to winter sunlight and take advantage of the northern aspect of the site. 58 In the circumstances, the Tribunal concludes that the outdoor living area for Unit 1 is deficient in its compliance with the objectives of the Codes. 59 The respondent has asserted that the setback of Unit 3 from the rear boundary does not comply with the requirements of the Codes. This assertion is not challenged by the applicant.
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60 Comparison of the plans with the relevant boundary setback requirements confirms to the Tribunal that the proposed setback is not compliant with the Codes.
61 There are a number of other aspects raised in this review relating to noncompliance with car parking dimensions, a carport parapet wall, crossovers, storage areas and the like. Whilst important, these matters are perhaps rectifiable and may not be fatal to the success of the application. 62 It is not, however, necessary for the Tribunal to now address these matters, because it has already found significant and profound failures of compliance of the proposed development with more fundamental requirements of the Codes relating to site area, outdoor living areas and boundary setback. 63 In summation of the two principal issues under consideration, the Tribunal finds, firstly, that it has not been satisfactorily demonstrated that the proposed development meets the objectives of LPP 2, and secondly, that the proposed development does not satisfactorily conform with the objectives of the Codes.
Conclusion 64 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the proposed development of three grouped dwellings at No 37 (Lot 222) Schofield Street, Eden Hill, should be dismissed.
Orders 65 The Tribunal therefore makes the following orders: |