Sarunic and Town Of Cambridge
[2006] WASAT 340
•13 November 2006
SARUNIC and TOWN OF CAMBRIDGE [2006] WASAT 340
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 340 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:239/2006 | 13 NOVEMBER 2006 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MS M CONNOR (MEMBER) | 13/11/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Decision to refuse variation set aside and decision substituted that exercise of discretion not required | ||
| B | |||
| PDF Version |
| Parties: | WILL SARUNIC TOWN OF CAMBRIDGE |
Catchwords: | Town planning Application for variation to acceptable development provision for erection of single house Setback Unusually shaped battleaxe allotment resulting from consolidation of two street front allotments and resubdivision into three allotments Determination of "rear" boundary for purposes of Residential Design Codes of Western Australia (2002) Planning purpose of rear boundary setback control Criteria for determining rear boundary based on the common situation of allotments and rear boundaries Council incorrectly determined rear boundary Variation not required |
Legislation: | Planning and Development Act 2005 (WA), s 238(3), s 238(4), s 252(1) Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.3.1 A1, cl 3.3.1 P1 Town of Cambridge Town Planning Scheme No 1, cl 32(2), cl 33(1)(e), cl 33(2) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SARUNIC and TOWN OF CAMBRIDGE [2006] WASAT 340 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MS M CONNOR (MEMBER)
13 NOVEMBER 2006 FILE NO/S : DR 239 of 2006 BETWEEN : WILL SARUNIC
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Application for variation to acceptable development provision for erection of single house - Setback - Unusually shaped battleaxe allotment resulting from consolidation of two street front allotments and resubdivision into three allotments - Determination of "rear" boundary for purposes of Residential Design Codes of Western Australia (2002) - Planning purpose of rear boundary setback control - Criteria for determining rear boundary based on the common situation of allotments and rear boundaries - Council incorrectly determined rear boundary - Variation not required
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Legislation:
Planning and Development Act 2005 (WA), s 238(3), s 238(4), s 252(1)
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.3.1 A1, cl 3.3.1 P1
Town of Cambridge Town Planning Scheme No 1, cl 32(2), cl 33(1)(e), cl 33(2)
Result:
Application for review allowed
Decision to refuse variation set aside and decision substituted that exercise of discretion not required
Category: B
Representation:
Counsel:
Applicant : Mr S Allerding (Acting as Agent)
Respondent : Mr C O'Neill (Acting as Agent)
Solicitors:
Applicant : Allerding & Associates (Town Planners)
Respondent : Chris O'Neill and Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The owner of an unusually shaped rear battleaxe allotment wishes to erect a two storey single house on the property. The proposal does not require development approval. However, as the local government considered that the "rear" boundary of the site for the purposes of the Residential Design Codes of Western Australia (2002) is the long boundary which is in the same position as the rear boundaries of two original allotments, the landowner made an application for a variation of the acceptable development provision under the Codes in relation to setback to that boundary. The local government refused the application and the landowner sought review.
2 Following the hearing, the Tribunal gave an oral decision. The Tribunal determined that the rear boundary of the property is not the long boundary, but is, rather, the short boundary which is furthest away from both the street frontage and the boundary where one gains access to the effective or useable part of the site.
3 In the absence of a definition or other explanation in the Codes of the meaning of "rear" boundary, the Tribunal adopted two criteria based on the common situation of allotments and rear boundaries which accord with the planning objective of the rear setback control and common sense. The criteria are that, commonly, the rear setback area in traditional low density residential housing is the area furthest from the public street or equivalent semi-public area, and, commonly, the rear boundary is a short boundary.
4 Applying these criteria to the physical characteristics of the site, the rear boundary of the site is not the boundary nominated by the local government. The rear boundaries of the two original allotments are now the side boundary of the site. In consequence, the erection of the proposed house does not require the Council to exercise a discretion. The landowner only requires a building licence. The application for review was, therefore, allowed.
5 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
6 These proceedings involve an application brought by Mr Will Sarunic pursuant to s 252(1) of the Planning and Development
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- Act 2005 (WA) (PD Act) for review of the decision of the Town of Cambridge (Town or Council) to refuse to approve a variation to the acceptable development provision for setback stated in the Residential Design Codes of Western Australia (2002) (Codes) in relation to the erection of a two storey single house at No 241C (Lot 303) Salvado Road, Floreat (site).
7 The site is a somewhat unusually and irregularly shaped battleaxe allotment, which has come into existence as a result of the approval by the Western Australian Planning Commission (Commission) in October 2003 of a plan of consolidation of two regularly shaped 1000 square metre allotments at Nos 239 and 241 Salvado Road and resubdivision of the consolidated allotment into two street-front lots of 722 square metres and 580 square metres, being Lots 301 and 302 respectively, and the site. The site comprises a 4.0 metre wide access leg along the eastern edge of the consolidated allotment and the rear portion of the consolidated allotment with a width beyond the access leg of, variously, 13.59 metres and 14.93 metres and a length of 37.2 metres.
8 The site has a total area of 698 square metres. However, excluding the access leg, the effective or developable site area is approximately 548 square metres. We note that the site is a somewhat unusual battleaxe allotment, because battleaxe allotments usually form an access handle and the rear half of a single original allotment, rather than the narrow rear parts of two original allotments. Attachment A to these reasons is a copy of the deposited plan of subdivision which shows the location and dimensions of the site.
9 The plan of consolidation and resubdivision was approved by the Commission subject to a condition which required the applicant to obtain planning approval for the development of a house on the site. In fulfilment of this condition, a development application for a single storey house with a floor area of 280 square metres was submitted by the subdivider to the Town in January 2004 and approved by the Town in March 2004. The deposited plan was then issued in June 2004.
10 It is to be noted, however, that neither the subdivision approval nor any applicable planning instrument precludes development of the site for a two storey single house. It cannot be reasonably said, absent a condition of planning approval, a provision of an applicable planning instrument or a restrictive covenant, that there is a reasonable expectation that the only built form which will occur on the site is a single storey house, much less
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- that the only development which can reasonably take place on the site is the house approved by the Council in 2004.
11 Earlier this year, Mr Sarunic, the current owner, proposed the erection of a two storey single house with a floor area of 415 square metres, on the site.
12 The site is zoned "Residential" and has a residential density coding of R15 under the Town of Cambridge Town Planning Scheme No1 (TPS 1 or Scheme). Under cl 33(1)(e) of the Scheme, development approval is not required for the erection of the proposed house. However, cl 33(2) provides that where a person wishes the Council to exercise discretion under the Codes relating to the erection of a single house, the person shall apply in writing to the Council seeking the Council's approval to the variation. The subclause states that the Council may approve the variation with or without conditions or may refuse to approve the variation. However, before granting approval, the Council shall satisfy itself that:
(a) the discretion requested is one which the Council has the power to approve; and
(b) granting of that discretion would not compromise the objectives of the Codes.
13 The subject application to Council was premised on the Council's view that the long southern boundary of the site which formed the rear of the two original allotments is relevantly the rear boundary of the site for the purposes of the Codes, with the result that the acceptable development under cl 3.3.1 A1 and Table 1 of the Codes involves a minimum setback to that boundary of 6.0 metres.
14 In contrast, Mr Sarunic considers that the rear boundary of the site for the purposes of the Codes is the short western boundary, which is furthest from the site's street frontage and the access handle, and that the southern boundary is a side boundary.
15 The proposed house would have setbacks to the western boundary of, variously, 8.0 metres and 12.315 metres at the lower level, and 8.0 metres, 12.315 metres and 17.630 metres at the upper level, and to the southern boundary of, variously, 1.0 metre, 3.0 metres, 2.2 metres, 1.5 metres and 5.620 metres at the lower level, and 1.5 metres, 3.0 metres, 2.2 metres, 6.344 metres and 7.119 metres at the upper level.
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16 The Council notified 12 adjoining or nearby properties of the subject application and received objections from the owners of the two adjoining properties to the south at 20 Evandale Street and 22A Evandale Street. The owners of 22A Evandale Street, Mr and Ms Silvester, were also called to give evidence to the Tribunal.
17 The Council's assessing officer considered that the rear boundary of the site, for the purposes of the Codes, is relevantly the southern boundary and that, consequently, a variation to the acceptable development setback of 6.0 metres is required. The officer considered that the corresponding performance criteria are satisfied in the circumstances of the case and therefore that the variation should be granted.
18 However, at its meeting on 27 June 2006, the Council resolved to refuse the application for the following reasons:
"(i) the proposal does not meet the acceptable development requirements of the Residential Planning Codes in relation to side and rear setbacks and it is not considered that the variations requested can be justified in terms of relevant performance criteria;
(ii) in view of (i) above, it is considered that the proposal would have a detrimental impact on the adjoining neighbours;
(iii) objections have been received from adjoining property owners to the rear."
19 As the value of the proposed development is marginally less than $500 000, the Tribunal would usually be required to be constituted under s 238(3) of the PD Act by an ordinary member sitting alone. However, the President has formed the opinion, under s 238(4), that the application is likely to raise complex or significant planning issues and has listed the proceedings for determination before a panel comprising a senior member and an ordinary member.
Issues
20 The following three issues arise for determination in this review:
(1) Is the rear boundary of the site relevantly its southern or western boundary for the purposes of the Codes?
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- (2) Is a variation to the acceptable development provision for setback to the southern boundary required?
(3) If a variation is required, should it be granted?
21 The Tribunal will now turn to these issues.
Which is the rear boundary of the site?
22 The Tribunal had the benefit of evidence on this issue from Mr Ken Adam, an architect and town planner, who was called on behalf of Mr Sarunic and Mr Chris O'Neill, a town planner, who was the advocate and expert witness for the Town.
23 As the Codes do not contain a definition of rear boundary for the purpose of setback and do not provide any other textual or diagrammatic explanation of the term, both Mr Adam and Mr O'Neill have sought to discern its meaning by a broader analysis.
24 Mr Adam explained that, from his long experience of residential development controls in Western Australia, which goes back to a number of predecessors to the Codes, "I can say definitively that the purpose of a rear setback has always been, historically, to protect the backyard areas of traditional single house blocks, both those of the subject lot and those of adjoining lots". Mr Adam noted that the site's four substantive or effective site boundaries adjoin the backyard areas of six lots. In this context, he asked, rhetorically, "What criterion should best apply"?
25 Mr Adam offered two criteria based on the "common situation" of allotments and rear boundaries. First, "the private rear setback area (the 'backyard' of traditional low density single housing) is that area furthest removed from the public street (or the equivalent side of the site), which is semi-public, because it is open to visitors, if not to the open gaze of the public". Second, "the rear boundary is a short boundary, the long boundaries normally being side boundaries". Mr Adam considered that these criteria indicate that the rear boundary of the site is, relevantly, the western boundary.
26 Mr O'Neill referred to the dictionary definition of the word "rear", namely, "the back of anything as opposed to the front" and "the space or position behind anything". He also expressed the opinion that:
"The fundamental purpose of setbacks under the 2002 Codes relates to the preservation of amenities of adjoining properties, and on this basis the classification of boundaries and the
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- application of setback standards should logically be determined with reference to the adjoining properties."
27 Mr O'Neill considered that, based on the ordinary meaning of "rear" and the position of the site in relation to the adjoining properties, the rear boundary of the site is the southern boundary.
28 We accept Mr Adam's characterisation of the purpose of the rear setback control "to protect the backyard areas of traditional single house blocks, both those of the subject lot and those of adjoining lots". This characterisation is consistent with the fact that the rear setback control is only prescribed in the low density codings of R2.5 to R15 where one would expect to find traditional backyards to the rear of single houses which are oriented to the street.
29 Moreover, although we accept Mr O'Neill's opinion that a purpose of the rear setback control is to preserve the amenities of adjoining properties, we do not agree that this is the sole or fundamental purpose or that the classification of boundaries should logically be determined by reference to the adjoining properties. The rear boundary in question, under the Codes, is the rear boundary of the site, the subject of a proposed residential development, not the rear boundary of an adjoining property or properties. It is usually, but not always, the case in a low density subdivision that the rear boundary of the site the subject of a proposed residential development adjoins the rear boundary or one or more other allotments.
30 It is not unusual for the rear boundaries of allotments which are located at or adjacent to a street corner to adjoin the long side boundaries of an allotment oriented to the perpendicular street.
31 Furthermore, it is not unusual for corner allotments and lots which adjoin them to be subdivided into allotments having their orientations to different streets, with the result that the rear boundaries of original allotments adjoin the long side boundaries of newly created allotments. Indeed, the allotment which immediately adjoins the site to the west and is oriented to Birkdale Street appears to have resulted from the consolidation of two 1000 square metre allotments and the resubdivision of the consolidated allotment into three lots. The same thing appears to have occurred at the opposite end of the street block.
32 The result is that the rear boundaries of eight allotments in the street block adjoin the long side boundaries of allotments, rather than the rear
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- boundaries of allotments. Attachment B to these reasons is a tax sheet of the street block, taken from Mr O'Neill's evidence.
33 Further, if classification of the rear boundary of the site is to be determined by reference to the adjoining properties, rather than by reference to the characteristics of the site itself, which one or two of the six adjoining sites should be taken as the reference point? As noted earlier, the site adjoins the rear yards of six allotments. Which one or two of the six adjoining properties should have its amenities protected and the other four or five should not?
34 In this regard, we do not accept Mr O'Neill's assertion that for planning purposes the site continues to form a single unit together with Lots 301 and 302. Upon subdivision of the two original allotments, the site was created with its somewhat unusual configuration as an independent real property and planning unit. The Council's task and the task of the Tribunal and review is to determine which boundary of the site is the rear boundary under the Codes. On the basis of the physical characteristics of the site as a separate allotment, this may or may not correspond with what was the rear boundary of one or both of the former allotments.
35 The rear boundary setback provision of the Codes precludes the placement of a building within the nominated distance to the rear boundary of the allotment the subject of the proposed residential development, subject to the performance criteria. The provision, therefore, directly protects the backyard area of the site itself by keeping it free from built form, and usually indirectly protects the backyard areas of adjoining lots by ensuring that they continue to adjoin a backyard on the site. However, the provision does not protect the backyard areas of adjoining lots where, because of the orientation or configuration of the site, the backyard area of adjoining lots do not adjoin the rear boundary and backyard area of the site.
36 We do not, therefore, find Mr O'Neill's analysis based on the purpose of the control to be of assistance.
37 We consider Mr Adam's two criteria for determining which is the rear boundary of an allotment to be both sensible and helpful. The criteria are consistent with the planning purpose of the rear setback control and common sense. We agree with Mr Adam that the criteria clearly indicate that the rear boundary of the site for the purposes of the Codes is the short western boundary, which is furthest away from both the street frontage of
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- the site and from the "semi-public" effective entrance to the site at the eastern end of the principal part of the site. The proposed design which places the backyard adjacent to the western boundary is reasonably responsive to the physical characteristics of the site.
38 As noted earlier, the site is a somewhat unusually shaped battleaxe, because it comprises the narrow rear parts of two former allotments, rather than an accessway and the rear half of a single former allotment. In a traditional rear battleaxe allotment, Mr Adam's two criteria are likely to indicate that the original allotment's rear boundary remains the rear battleaxe allotment's rear boundary. However, the physical characteristics of the site, in this case, result in a different conclusion.
39 Finally, we consider that caution should be exercised in the strict application of the dictionary definition of the word "rear" in the particular planning context of a rear setback control. As Mr Adam observed, to apply the ordinary meaning in this discreet planning context is unwise, as it might well result in an unintended and arbitrary outcome. Although it is correct that the site has a frontage to the street, reasonable minds might well differ as to whether the front boundary is relevantly that frontage or where one gains access to the effective or useable portion of the site or the boundary to which the site is oriented; cf the definition of "frontage" in cl 2.2 of the Codes.
40 In any case, the back does not have to be parallel to the front. For example, the back entrance to premises may be on a side street which is perpendicular to the street on which the premises have their front entrance. The back of anything, as opposed to the front, implies the opposite end.
41 In this case, if regard is had to the dictionary meaning, the boundary at the opposite end of both the street-front boundary and the eastern boundary of the site where one gains access to the effective or useable part of the site is the western boundary.
Is a variation required for setback to the southern boundary?
42 Mr Adam gave evidence, which was not substantially challenged by Mr O'Neill, that if the southern boundary of the site is not the rear boundary, as we have found, then the proposed dwelling satisfies the acceptable development provision in relation to setback to that boundary.
43 We accept this evidence. In particular, we find that the eastern part of the building which would contain the garage, with a setback of
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- 1.0 metre, and the master bedroom, with a setback of 1.5 metres, complies with the acceptable development provision in cl 3.3.1 A1, Table 2 and Figure 2D of the Codes. It follows that a variation to the acceptable development provision is not required.
44 As the proposed dwelling complies with the acceptable development provision in clause cl 3.3.1 A1, it is deemed to meet the relevant performance criteria in cl 3.3.1 P1 which states as follows:
"Buildings set back from boundaries other than street boundaries so as to:
• provide adequate direct sun and ventilation to the building;
• ensure adequate direct sun and ventilation being available to adjoining properties;
• provide adequate direct sun to the building and appurtenant open spaces;
• assist with protection of access to direct sun for adjoining properties;
• assist in ameliorating the impacts of building bulk on adjoining properties; and
• assist in protecting privacy between adjoining properties."
45 The issue of whether a required variation should be granted does not arise. However, we should briefly deal with the concerns expressed by Mr and Ms Silvester.
46 Mr and Ms Silvester gave evidence that, as retired people, they spend a considerable amount of time in the house and rear garden. One of the things that particularly attracted them to their house is the fact that the living areas and master bedroom have a northern orientation to the garden. Mr and Ms Silvester fear that the overshadowing of their courtyard by the proposed development during the winter months, particularly in the morning, will spoil their home and affect their quality of life.
47 Mr O'Neill provided a shadow diagram of the impact of the development at 9.00 am on 21 June. It shows that at that time the development would overshadow the whole of the Silvesters' garden, other than a small triangular portion adjacent to the eastern window of the
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- master bedroom and an area to the north-west of the master bedroom, although this latter area is likely to be affected by the fence-line shadow in any case. The development would also overshadow the floor area at the entrance to the living area and the northern end of the master bedroom. However, it would not appear to preclude direct sun into the living room, kitchen and master bedroom of Mr and Ms Silvesters' house. Furthermore, by midday on 21 June the shadow cast by the development would recede, so as to only affect approximately half of the rear garden and no part of the house. Importantly, as Mr Adam observed, a sizeable area of the rear garden in the order of over 30 square metres immediately adjacent to the internal living area of Mr and Ms Silvesters' house would receive direct sunlight at midday on the shortest day of the year.
48 We consider that the overshadowing impact of the proposed dwelling on the Silvesters' property is reasonably anticipated by the Codes.
Conclusion
49 The southern boundary of the site is not relevantly its rear boundary. The physical characteristics of the site are such that the rear boundary, in the somewhat unusual circumstances of this case, is the short western boundary which adjoins the short eastern rear boundary of the property which fronts Birkdale Street.
50 The proposed setback to the rear boundary of the site and the proposed setback to the southern boundary comply with the acceptable development provision in cl 3.3.1 A1 of the Codes. It follows that the erection of the proposed single house does not require the Council to exercise a discretion under the Codes.
51 As the proposed development is exempt from the requirement to obtain development approval under cl 33(1)(e) of the Scheme, the applicant only requires a building licence.
52 The application for review should be upheld. The decision of the Town to refuse the application for variation under cl 33(2) of the Scheme should be set aside and a decision substituted in its place that the Council is not required to exercise discretion under the Codes relating to the erection of the proposed house.
Orders
53 The Tribunal makes the following orders:
(1) The application for review is allowed.
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- (2) The decision of the Town of Cambridge made on 27 June 2006 pursuant to cl 33(2) of the Town of Cambridge Town Planning Scheme No 1 to refuse to approve a variation to the acceptable development provision under cl 3.3.1 A1 of the Residential Design Codes of Western Australia (2002) in relation to the setback of the proposed two storey single house shown on plans PL01, PL02, PL03, PL04, PL05 and PL06, drawn by Infratec Construction Pty Ltd, dated May 2006, from the southern boundary of No 241C (Lot 303) Salvado Road, Floreat is set aside and in its place a decision is substituted that the Council is not required to exercise discretion under the Codes relating to the erection of the proposed house.
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Attachment A
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Attachment B
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I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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