SANTOS and CITY OF FREMANTLE
[2017] WASAT 96
•29 MAY 2017
SANTOS and CITY OF FREMANTLE [2017] WASAT 96
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 96 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:385/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) | 29/05/17 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | ABIGAIL SANTOS CITY OF FREMANTLE |
Catchwords: | Town planning Development Addition of external staircase with side screening to existing mixed use building Refusal Staircase abutting side and rear boundary Staircase access to first floor dwelling - Mixed use has base density code of R35 Impact on amenity of adjoining residential properties Reduced boundary setback Visual amenity Visual privacy External fixture Compatibility of the development with its setting |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 3.2.1(e), cl 4.5, Pt 5, Sch 8 Planning and Development (Local Planning Scheme) Regulations 2015 (WA), cl 67, cl 67(b), cl 67(m), Sch 2 State Administrative Tribunal Act 2004 (WA), s 60(2) State Planning Policy 3.1 - Residential Design Codes 2015, cl 5, cl 6.1.4, cl 6.4.1, cl 6.4.5, Pt 5, Pt 5.4, Pt 6, Table 2a, Table 2b Planning and Development Act 2005 (WA), s 4, s 252(1) |
Case References: | Galloway & Associates and City of Melville [2007] WASAT 238 |
Orders | 1. For reasons that will be published in due course, the application for review is dismissed.,2. The refusal of the City of Fremantle issued 11 November 2016 is endorsed. |
Summary | The proposed development was the addition of a steel staircase with side screening, between a first floor dwelling and a ground level carpark, to be built in the side and rear boundary setback at the rear corner of a mixed use development. ,The Tribunal found that the proposed development would not satisfy requirements of the RCodes and matters to be considered under the local planning scheme regulations. This was because, at the reduced setback, this type of structure would add to perceived building bulk and have an adverse effect on visual amenity which, together with the use to be made of the staircase, would have an unacceptable impact on the amenity of the neighbouring residential property. ,The Tribunal decided to dismiss the application for review. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SANTOS and CITY OF FREMANTLE [2017] WASAT 96 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 MAY 2017 FILE NO/S : DR 385 of 2016 BETWEEN : ABIGAIL SANTOS
- Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development - Addition of external staircase with side screening to existing mixed use building - Refusal - Staircase abutting side and rear boundary - Staircase access to first floor dwelling - Mixed use has base density code of R35 - Impact on amenity of adjoining residential properties - Reduced boundary setback - Visual amenity - Visual privacy - External fixture - Compatibility of the development with its setting
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 3.2.1(e), cl 4.5, Pt 5, Sch 8
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), cl 67, cl 67(b), cl 67(m), Sch 2
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Planning Policy 3.1 - Residential Design Codes 2015, cl 5, cl 6.1.4, cl 6.4.1, cl 6.4.5, Pt 5, Pt 5.4, Pt 6, Table 2a, Table 2b
Planning and Development Act 2005 (WA), s 4, s 252(1)
Result:
Application for review dismissed
Summary of Tribunal's decision:
The proposed development was the addition of a steel staircase with side screening, between a first floor dwelling and a ground level carpark, to be built in the side and rear boundary setback at the rear corner of a mixed use development.
The Tribunal found that the proposed development would not satisfy requirements of the RCodes and matters to be considered under the local planning scheme regulations. This was because, at the reduced setback, this type of structure would add to perceived building bulk and have an adverse effect on visual amenity which, together with the use to be made of the staircase, would have an unacceptable impact on the amenity of the neighbouring residential property.
The Tribunal decided to dismiss the application for review.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Galloway & Associates and City of Melville [2007] WASAT 238
Introduction
1 This matter was determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
2 The Tribunal issued its decision refusing the application for review on 29 May 2017. Following, are the reasons for that decision.
3 In determining this matter, the Tribunal had the benefit of statements of issues, facts and contentions and bundles of relevant documents filed by both the applicant and the respondent. The Tribunal also had statements from Mr Anthony Morecombe and Mr Thomas Hockley, both experienced town planners, called by the applicant and the respondent respectively.
4 This was an application by Ms Abigail Santos (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision by the City of Fremantle (City or respondent) to refuse to grant planning approval for the addition of an external staircase at the rear of the first floor of the mixed use development in the building at No 88 (Lot 3) Marine Terrace, Fremantle (the site).
The site and the locality
5 There was no dispute that the respondent's description of the site and locality was adequate.
6 In summary, it can be stated that the site has an area of 433m² and is orientated eastwest with frontage at the western end to Marine Terrace. On the site is a three storey mixed use development that was the subject of earlier planning approvals. At ground floor level is an office fronting Marine Terrace, behind which is a stairwell and lift. To the rear of the office are eight parking bays, mostly as an undercroft to the floors above. Multiple dwellings occupy the first and second floors. On the first floor are residential Units 1 and 2 and the lower floor of Unit 3. The upper floor of Unit 3 occupies the second floor. All three dwellings have balconies but, relevantly, Unit 3 has a balcony at the first floor level at the eastern end of the building with a screen wall on the southern side to prevent overlooking of the Lot to the south. Access to all three dwellings is via the centrally located stairwell and lift. Unit 3 also has an internal spiral staircase between its lower and upper floors.
7 A driveway to the rear parking bays runs between the building and the northern boundary. The building has sections of parapet wall on the southern boundary.
8 The site is two lots removed from the corner of Marine Terrace and Russell Street to the south. In Russell Street are two grouped dwellings on Lot 1 and one dwelling on adjoining Lot 2, that have at the rear outdoor living space adjoining, respectively, the southern and eastern boundaries of the site.
Proposed development
9 The applicant amended the plans first lodged with the City following consideration of an objection. Plans of the proposed development considered and refused by the respondent on 11 November 2016, show at first floor level a new solid door in the southern screen wall of the eastern balcony of Unit 3. Within the 1.5 metre setback between this wall and the southern boundary, would be erected an unroofed galvanised steel staircase descending parallel to the southern boundary to a landing and then turning to descend parallel to the eastern boundary of the site to the carpark at ground floor level.
10 The proposed staircase shows a 1,650 millimetre high obscure glazed privacy screen erected to screen the neighbouring lots from the view of persons on the staircase. At its highest, the top of the privacy screen would be 3,840 millimetres above ground level. The stairwell is shown on the plans at a setback of 190 millimetres from both the southern and eastern boundaries.
11 The applicant said there was no exit at the rear of the building and the staircase would provide an alternative means of escape in an emergency and more convenient access to the rear parking area. It was said the building would become safe, efficient and comfortable. The Tribunal assumed the City approved a building that complied with fire safety requirements. It was also noted that the staircase serves only Unit 1, so in effect the staircase would be a convenient and efficient private access for Unit 1 between the first floor and the parking area.
12 The applicant's planning witness, argued for a staircase without privacy screens to be approved. That is, the Tribunal was asked to approve a development that was not before the original decisionmaker. The Tribunal proceeded on the basis that it was being asked to determine the planning merit of a proposed staircase addition that included the side screens. The Tribunal would comment that an approval may be granted subject to conditions, but only in circumstances where the development that was the subject of the original decision might be made acceptable. The Tribunal does not accept that the development under review can be ignored and what is arguably a different development, because of the relationship of an open staircase with adjoining uses, can be considered for approval on review.
Planning framework
13 The site is subject to planning controls found in City of Fremantle Local Planning Scheme No 4 (LPS 4), the State Planning Policy 3.1 Residential Design Codes 2015 (RCodes)and the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) (LPS Regulations).
14 The site is zoned 'Mixed Use' under LPS 4 and identified as having a base residential density of R35. The Russell Street lots referred to above are zoned 'Residential' under LPS 4.
15 Clause 3.2.1(e) of LPS 4 sets out objectives of the Mixed use zone and relevant to the proposal is:
…
(iv) ensure that development is not detrimental to the amenity of adjoining owners or residential properties in the locality[.]
16 Clause 4.5 of LPS 4 provides the general development requirements for mixed use development and states:
Where mixed use development is proposed, the provisions of Part 5 and Part 6 of the RCodes will apply.
17 Part 5 of LPS 4 and associated Sch 8 contain provisions for 'Designated Special Control Areas', which include local planning areas. The site is located within Local Planning Area 4 South Fremantle and subarea 4.3.2. Immediately adjacent is subarea 4.3.1. The sub-areas provide for different maximum external wall heights. The top of the screen wall of the proposed staircase is less than the prescribed maximum height.
18 The provisions of cl 67 of Sch 2 of the LPS Regulations are deemed included in LPS 4 by reference. Clause 67 requires the decisionmaker to have regard to certain matters including, relevantly:
…
(a) the aims and provision of this scheme[;]
(b) the requirements of orderly and proper planning[;]
(c) any approved State planning policy;
…
(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
…
(ii) the character of the locality;
…
(w) the history of the site where the development is to be located;
…
(y) any submissions received on the application;
…
19 As set out above, under cl 4.5 of LPS 4, the provisions of Pt 5 and Pt 6 of the R-Codes are applicable to a mixed use development and must be considered.
20 In the R-Codes, cl 5.1.3 and cl 6.1.4 relate to lot boundary setbacks, cl 5.4.4 and cl 6.4.5 relate to external fixtures and cl 5.4.1 and cl 6.4.1 are concerned with visual privacy. The provisions of the R-Codes are referred to in the discussion below.
21 At Appendix 1 of the R-Codes are found the following definitions:
Building Any structure whether fixed or movable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools.
External fixtures These are utilities, equipment, plant or other structures which are necessary for a dwelling to achieve efficient, comfortable and environmentally sustainable operating outcomes and may include; solar collectors, rainwater storage tanks, clothes drying structures, communications and power and water infrastructure, letterboxes, or other fixtures as necessary for the residential use of the buildings onsite.
Major opening - A window, door or other opening in the exterior wall of a habitable room that provides external means of light or view for that room or space, but does not include an opening or openings that:
• in aggregate do not exceed 1m² in any such wall, (provided that adjoining or contiguous windows at the junction of two walls forming an internal angle of 90 degrees or less shall be aggregated); or
• are glazed in an obscure material and are not able to be opened; or have a sill height not less than 1.6m above floor level.
Refusal
22 The City refused the application for the reason:
The proposal does not address the design principle criteria of the Residential Design Codes in respect to the southern lot boundary setback of the external staircase addition.
The issue
23 The issue for the Tribunal was whether the proposed development would be acceptable having regard to the matters relevantly required to be considered under cl 67 of the LPS Regulations, the submissions of the parties and the relevant provisions of LPS 4 and Pt 5 and Pt 6 of the RCodes.
Discussion
24 The parties and the expert witnesses in this matter have followed separate lines of argument through selected definitions and provisions of the RCodes in support of their respective positions on the merit of the proposed development. The wording of the various definitions and clauses lends itself to this approach because of the sometimes contradictory construction and in some instances silence on relevant considerations.
25 While the parties disagreed on which provisions of the R-Codes were relevant to this matter, they did, however, ultimately provide submissions and expert opinion on whether the development satisfied cl 5.1.3 Lot boundary setback, cl 5.4.1 Visual privacy and cl 5.4.4 External fixtures of the RCodes. In addition, the parties also made submissions on whether the proposed development would be acceptable, having regard to the relevant matters required to be considered under cl 67 of the LPS Regulations.
26 The Tribunal approached the application of the R-Codes and LPS 4 to this matter having regard to the approach to the interpretation of such documents as set out in Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253 in which the Tribunal, at [41], said (authorities omitted):
…
…
'[The definitions under review] are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose[.]'
28 In addition, the Tribunal rejected the applicant's submission that the staircase cannot be a 'building'. The respondent said the development did satisfy the definition of a 'building'. The Tribunal was of the opinion that, if allowed, the total development would comprise a 'building' as defined in the R-Codes. This is because the staircase does not serve any purpose on its own and is actually a structure appurtenant to a dwelling. It might be arguable that the uses listed in the definition of a 'building' are of a particular type and variety and a staircase does not fit into that list. As with the examples listed in the definition, however, the added staircase is viewed as a feature of a dwelling, used by the inhabitants.
29 The applicant has argued that the staircase is to be considered as and assessed as an external fixture to the building. It might be argued that a staircase does not sit with the list of 'utilities, equipment or plant', listed in the definition of 'External Fixtures' under the R-Codes. As the applicant points out, however, in the Explanatory Guidelines of the RCodes the photographs included are of external staircases attached to existing buildings. The staircase might then, to fit the photographs with the definition, be considered as an 'other structure'. The Tribunal has weighed the merit of the proposal as part of a building, as follows, but in any event, as can be seen below, also looked at the development as an external fixture.
30 Looking first at the provisions for lot boundary setbacks, the Tribunal concluded that the proposed staircase did not meet the deemedtocomply provisions of cl 5.1.3 of the R-Codes. The Tribunal is of the view that it is not the intention of the R-Codes to pretend that the staircases can simply be considered as an open structure better considered as just an external fixture, as argued by the applicant. This is because the Tribunal considered the staircase would become an integral part of the use of the building, would be just 19 centimetres off the boundary and clearly would be a visible addition to the bulk of the building. The proposed setback for this addition to the building does not satisfy the setback requirements of Tables 2a and 2b and so cannot satisfy the deemedtocomply requirement at cl 5.1.3 C3.1i. of the R-Codes.
31 In respect to cl 6.1.4 of the R-Codes, the development cannot be tested against the deemedtocomply provisions for lot boundary setbacks because the density coding is less than mentioned and the extension into the setback does not include a wall, by definition.
32 It is necessary then to look at the design principles for lot boundary setbacks. Dealing first with Pt 6 of the R-Codes, the proposed development is considered to not satisfy the design principles at cl 6.1.4 P4.1 because, as discussed above, the staircase is considered to be an integral part of the building and by bringing the building close to the boundary it is considered by the Tribunal not to 'moderate the visual impact of building bulk on a neighbouring property'. The impact on visual privacy is discussed further below.
33 In relation to the design principles at cl 5.1.3 P3.2, which refers to buildings built up to boundaries, as this development effectively is, the Tribunal has formed the view that, rather than as required, the development does 'have an adverse impact on the amenity of the adjoining property'. This may be perceived by neighbours, but is also a conclusion drawn from an objective assessment. The neighbouring residential lots would have introduced adjacent to the common boundary, where there is currently nothing, a utilitarian structure frequented by people passing between the carpark and the first floor.
34 As mentioned above, the applicant argued that the development was an external fixture. The Tribunal has proceeded on the basis that the development is an addition to the building, as set out above, but would comment that if considered as just an external fixture the staircase would still not be acceptable.
35 The Tribunal formed the view that the staircase would not satisfy the deemedtocomply provisions for external fixtures at cl 5.4.4 C4.3 of the RCodes. This is because, while the addition would not be visible from the street, is not designed to integrate with the building as required by cl 5.4.4 C4.3ii. The development simply would be attached to stand out from the otherwise basically cubeshaped rear of the building, and as a result, would not be located so as 'not to be visually obtrusive', as required by cl 5.4.4 C4.3iii.
36 The same requirements are carried through into the design principles at cl 5.4.4 P4.1 of the RCodes. That is, the external fixture is required to 'protect the visual amenity of surrounding properties'. Having concluded the development would be visually obtrusive and, as concluded above, would have an impact on the amenity of the neighbouring properties, the Tribunal has found that the development would not satisfy the requirements of cl 5.4.4 of the RCodes.
37 Clause 6.4.5 of the R-Codes has essentially the same requirements when assessing the acceptability of external fixtures. For reasons already expressed, the Tribunal also finds that the development would not satisfy cl 6.4.5 of the RCodes
38 Visual privacy, said the applicant and the respondent, need not be a consideration. This was said to be because, by definition, the staircase was not a 'habitable room' with 'major openings' or an 'unenclosed outdoor active habitable space'. In addition, the door at the top of the staircase was not a 'major opening' as defined in the RCodes because it did not provide external means of light or view. The Tribunal would comment that the new door, although obscure material, could be opened with a direct view of the neighbouring outdoor spaces. This might otherwise lead to a discussion of incompleteness in the definition of major openings and the purpose of the visual privacy provisions at cl 5.4.4 and cl 6.4.1 of the R-Codes. The Tribunal accepted the submissions of the parties, however, but only in respect to the deemedtocomply provisions of cl 5.4.1 and cl 6.4.1 because it was only in the deemedtocomply provisions that these terms are used.
39 Objective (a) of building design at cl 5.4 of the R-Codes is to design buildings that 'minimise adverse impact on the privacy of adjoining dwellings and private open spaces'. To this end the design principles at P1.1 and P1.2 of cl 5.4.1 and cl 6.4.1 have the requirement that there be minimal direct overlooking of outdoor living areas of adjacent dwellings by design features, to be achieved by features such as location of screening devices. The development includes screens that prevent overlooking to the south. The respondent did comment that there may be overlooking of the neighbour to the east from the top landing of the stairs. This may be the case but the respondent did not take the point further to illustrate just what would be overlooked. The development as applied for was considered to satisfy the visual privacy requirements of the R-Codes.
40 The Tribunal next looked at the proposed development in light of the required considerations at cl 67 of the LPS Regulations, and in particular cl 67(m). The Tribunal formed the view that the proposed development would not be compatible with its setting. This was because the staircase would sit virtually on the boundary adjacent to the outdoor living area of the dwelling abutting to the south. It is a utilitarian structure visually intruding and located where there was once vacant setback. While not seen, it was considered that people using the staircase could be perceived as an intrusive element in the amenity of the neighbouring outdoor space. It was also considered that there would be similar impact on the dwelling to the east, but not to the same degree because of the oblique view of the staircase from that rear yard.
41 Clause 67(b) of the LPS Regulations requires consideration be had to orderly and proper planning. This means that in addition to assessment against the requirements of the planning controls, regard to be had to the particular circumstances of the development. As set out above, the Tribunal found that the development would not satisfy the standards required under the R-Codes and cl 67(m) of the LPS Regulations. In addition, the Tribunal also formed the view that the development was unacceptable in the local context. This was because of the type of proposed addition resulting in the mixed use building extending to the common boundary with neighbouring residential development and having an adverse impact on the amenity of the neighbour.
Conclusion
42 LPS 4, at cl 3.2.1(e) includes the objective for the Mixed use zone that development not be detrimental to the amenity of adjoining owners. As set out above, the Tribunal concluded that there would be an unacceptable impact on the amenity of the neighbour adjoining the staircase, because of the reduced setback, increase in bulk, appearance of the development and the use to which it will be put.
43 The Tribunal therefore decided to dismiss the application for review.
Orders
On the application determined by Senior Sessional Member J Jordan on the documents, it is on 29 May 2017 ordered that:
1. For reasons that will be published in due course, the application for review is dismissed.
2. The refusal of the City of Fremantle issued 11November2016 is endorsed.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, SENIOR SESSIONAL MEMBER
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