SHEWAN and TOWN OF PORT HEDLAND - [2010] WASAT 191

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SHEWAN and TOWN OF PORT HEDLAND [2010] WASAT 191

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 DECEMBER 2010

FILE NO/S: DR 345 of 2010

BETWEEN: KEITA SHEWAN
Applicant
AND
TOWN OF PORT HEDLAND
Respondent

Catchwords:

Town planning - Grouped dwelling development comprising retention of existing dwelling at street frontage and construction of three new dwellings behind - Condition requiring appearance of retained dwelling to be upgraded in accordance with cl 6.2.9 of Residential Design Codes of Western Australia (2008) - Whether condition should be deleted - Whether condition should be amended to specifically require provision of at least one major opening in street façade of existing dwelling or, alternatively, landscaping in front setback area

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2.9, cl 6.2.9 A9, cl 6.2.9 P9
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town of Port Hedland Town Planning Scheme No 5, cl 6.2.3

Result:

Condition 4 deleted and replaced with the following condition:
'4. The existing dwelling is to be upgraded by providing at least one major opening from a habitable room in the northern wall facing Morgans Street.'

Category: B

Representation:

Counsel:

Applicant: Mr Andrew Patterson (Agent)
Respondent: Mr Luke Cervi (Public Sector Employee)

Solicitors:

Applicant: N/A
Respondent: N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Ms Keita Shewan sought the deletion of a condition imposed by the Town of Port Hedland on the approval of a grouped dwelling development, involving retention of an existing dwelling and construction of three additional dwellings, requiring that '[t]he appearance of the retained dwelling must be upgraded in accordance with cl 6.2.9 of the Residential Design Codes of Western Australia [(2008)] …'. The Town of Port Hedland requested the Tribunal to impose 'a more prescriptive condition' in place of the disputed condition requiring that '[t]he existing dwelling is to be upgraded by providing at least one major opening from a habitable room' in the street façade of the dwelling. The existing dwelling does not currently contain any windows in the street façade.
The Tribunal determined that the requirement of cl 6.2.3 of the Town of Port Hedland Town Planning Scheme No 5, that the proposed development must conform to the provisions of the Residential Design Codes of Western Australia (2008), relevantly necessitates the imposition of a condition to enhance the streetscape appearance of the existing dwelling under cl 6.2.9 of the Codes. The Town's proposed alternative condition is preferable to both the condition as originally imposed and an alternative proposal for landscaping advanced, at one point, by Ms Shewan. The Town's proposed alternative condition would greatly reduce the building bulk, enhance the articulation of the dwelling and enable passive surveillance of the street. The Town's proposed alternative condition is also reasonable and appropriate in the circumstances.
The disputed condition was deleted and the Town's proposed alternative condition was imposed in its place.

Introduction

Ms Keita Shewan is the owner of No 64 (Lot 247) Morgans Street, Port Hedland (site). The site has an area of 1,012 square metres and contains a fibroclad dwelling, with three bedrooms and one bathroom, set back approximately 13.25 metres from the street frontage. The western half of the dwelling's façade comprises a blank wall and the eastern half of the dwelling's façade contains an 8 square metre deck and the front door, but without any windows facing the street. The dwelling is in fair to good condition and is currently tenanted.
The site is zoned Residential with a residential density coding of R12.5/50 under the Town of Port Hedland Town Planning Scheme No 5 (TPS 5 or Scheme). On 21 June 2010, Ms Shewan's agent lodged a development application with the Town of Port Hedland (Town or Council) for approval under TPS 5 of a grouped dwelling development on the site comprising the retention of the existing dwelling and the construction of three two-storey dwellings to its rear.
On 8 October 2010, Mr Terry Sargent, the Town's Director Regulatory Services, acting under delegation from the Council, granted development approval for the proposed grouped dwelling development, subject to conditions including the following:
4. The appearance of the retained dwelling must be upgraded in accordance with Clause 6.2.9 of the Residential Design Codes of Western Australia [(2008)] to the satisfaction of the Manager of Planning. (Condition 4)
Footnote 2 of the notification of the development approval states as follows:
Further to Condition 4, upgrades required will be focused on the streetscape presentation of the dwelling. In this regard, it is expected that the façade will be altered to enhance the presentation of the dwelling to Morgans Street.
Clause 6.2.3 of TPS 5 states as follows:
Unless otherwise provided for in the Scheme the development of land for any of the Residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes.
Clause 6.2.9 of the Residential Design Codes of Western Australia (2008) (Codes) is entitled 'Appearance of retained dwelling' and forms part of element 2 Streetscape requirements of the Codes (element 2). The objective of element 2 of the Codes is:
To contribute towards attractive streetscapes and security for occupants and passersby, ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings.
Clause 6.2.9 of the Codes contains the following acceptable development provision which 'illustrate[s] one way of meeting the associated performance criteria':
A9 Where an existing dwelling is retained as part of a grouped dwelling development, the dwelling appearance is upgraded externally to an equivalent maintenance standard to the rest of the development.
The corresponding performance criteria in cl 6.2.9 of the Codes is:
P9 Enhancing the streetscape appearance of existing dwellings retained as part of a grouped dwelling development.
On 3 November 2010, Ms Shewan applied to the Tribunal, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for the review of the Town's decision and, in particular, for the deletion of condition 4. At the first directions hearing, held on 19 November 2010, the Tribunal directed Ms Shewan to file and give to the Town, by 26 November 2010, 'a proposal to satisfy' cl 6.2.9 P9 of the Codes, and directed the Town, by 3 December 2010, to file and give its response to Ms Shewan. Ms Shewan proposed that she undertake landscaping in the front setback of the site 'to improve the streetscape amenity'. The Town rejected Ms Shewan's proposal on the basis that it does not satisfy the performance criteria in cl 6.2.9 P9 of theCodes.
At the second directions hearing, held on 17 December 2010, the Tribunal ordered that the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), and directed the parties to file and exchange evidence and submissions, and evidence and submissions in reply.

Consideration of application for review

On 24 August 2010, prior to the granting of the development approval on 8 October 2010, the Town indicated to Ms Shewan that, ideally, 'Council officers would like to see a major opening to provide passive survellience [sic] in conjunction with a front façade makeover'. Ultimately, however, as Mr Luke Cervi, the Town's Acting Manager Planning, explained, condition 4 was expressed in general terms to require 'the appearance of the retained dwelling [to] be upgraded' in accordance with cl 6.2.9 of the Codes, with footnote 2 of the notification stating that the required upgrade 'will be focused on the streetscape presentation of the dwelling', so as 'to provide the applicant with some direction whilst allowing flexibility for the applicant to propose their own solution'. However, in its submissions to the Tribunal, the Town requested that the Tribunal should replace condition 4 with 'a more prescriptive condition' as follows:
The existing dwelling is to be upgraded by providing at least one major opening from a habitable room in the northern wall facing Morgans Street.
The Town presented two photomontages showing, in Mr Cervi's opinion, 'two examples I consider to meet the [Town's proposed alternative] condition and more importantly the performance criteria P9 of cl 6.2.9 of the R Codes'. The photomontages presented by the Town are attached to these reasons.
In his evidence and submissions on behalf of Ms Shewan, Mr Andrew Patterson, a consultant town planner, argued that condition 4 should be deleted and should not be replaced with the Town's proposed alternative conditionm for essentially four reasons.
First, Mr Patterson noted that, although the site currently comprises a single allotment, on 25 November 2010, the Western Australian Planning Commission granted approval to subdivide the site into two green title lots. Lot 1 of the approved subdivision contains the existing dwelling and Lot 2 of the approved subdivision comprises the part of the site on which the three new grouped dwellings are to be constructed and an accessway to service these dwellings from Morgans Street.
However, the development application that is the subject of this review proceeding is in respect of the whole of the site and involves the retention of the existing dwelling as part of the grouped dwelling development. Clause 6.2.3 of TPS 5 requires that the development the subject of the development application must conform to the Codes including, relevantly, cl 6.2.9 of the Codes. Although, after the registration of the deposited plan of subdivision and the issue of separate titles for Lot 1 and Lot 2 in the approved subdivision, Ms Shewan could lodge a fresh development application under TPS 5 for the construction of three grouped dwellings on Lot 2, which would not be subject to cl 6.2.9 of the Codes, the requirement for conformity with cl 6.2.9 of the Codes is not obviated in relation to the development the subject of the development application by the granting of subdivision approval in relation to the site.
Secondly, Mr Patterson argued that the Town's proposed alternative condition should not be imposed, because construction of external windows in the existing dwelling would require development approval and certification from a structural engineer that the modifications do not compromise the building's ability to withstand cyclonic wind events.
However, the carrying out of physical works required by a condition imposed in accordance with cl 6.2.9 of the Codes does not require a separate development approval, but rather is authorised under TPS 5 by the imposition of the condition itself. The condition forms part of the development approval which includes the retention of the existing house as a grouped dwelling. The development approval, subject to the condition, therefore constitutes development approval for the construction of one or more external windows in the street façade of the existing house, in the same way as development approval, subject to a condition requiring an alteration to the development plans, constitutes development approval for the alteration. No engineering evidence was presented to the effect that the provision of a major opening to the street façade of the existing dwelling would compromise the building. Furthermore, Mr Patterson provided streetscape photographs showing that the street is comprised of, according to Mr Patterson's evidence, 'dwellings of similar construction, predominantly in poor maintenance', each of which contains windows in the front façade. The major opening or openings required by the Town's proposed alternative condition would need to be shown on the building licence plans. If necessary, engineering advice could inform the preparation of the building licence plans.
Thirdly, Mr Patterson argued that the Town's proposed alternative condition, requiring at least one major opening to the street façade, does not fall within the contemplation of the acceptable development provision in cl 6.2.9 A9 of the Codes, because it does not involve the upgrading of the dwelling appearance externally 'to an equivalent maintenance standard to the rest of the development'.
The noun 'maintenance' relevantly means 'the act of maintaining' and the verb 'maintain' relevantly means 'to keep in due condition, operation, or force' and 'to keep in a specified state, position, etc': The Macquarie Dictionary (4th ed, 2005) at 865. Mr Patterson is correct that the Town's proposed alternative condition is beyond the scope of the acceptable development provision in cl 6.2.9 A9 of the Codes. However, as noted earlier, the acceptable development provision simply 'illustrate[s] one way of meeting the associated performance criteria'. The Town's proposed alternative condition falls within the scope of the performance criteria in cl 6.2.9 P9 of the Codes of '[e]nhancing the streetscape appearance of existing dwellings retained as part of a grouped dwelling development' and the objective of element 2 of the Codes '[t]o contribute towards attractive streetscapes and security for occupants and passersby … '.
The existing dwelling to be retained as part of the development has a negative impact on the streetscape of Morgans Street, in terms of both the attractiveness of the streetscape and security for occupants and passersby. The blank wall occupying the western half of the street façade presents with significant building bulk and a complete lack of articulation. While the eastern half of the street façade has a veranda, it also does not contain any windows. The result is that the existing dwelling does not contribute towards an attractive streetscape and does not provide for surveillance between the dwelling and the street. As noted earlier, all of the other dwellings shown on the streetscape photographs provided on behalf of Ms Shewan contain windows in the street façade and, therefore, contribute considerably more towards an attractive streetscape and security for occupants and passersby.
Fourthly, Mr Patterson argued that 'the retained dwelling is of an equivalent maintenance standard to the surrounding development and we do not consider the requirement of additional upgrading necessary'. However, the performance criteria in cl 6.2.9 P9 of the Codes is not limited to ensuring that a retained dwelling is of an equivalent maintenance standard to the surrounding development, but rather requires '[e]nhancing the streetscape appearance of existing dwellings retained as part of a grouped dwelling development'. While the existing dwelling on the site may be of an equivalent maintenance standard to the surrounding development, it, as found earlier, has a negative streetscape impact and contributes less towards an attractive streetscape and security for occupants and passersby than the other dwellings in the street shown in the streetscape photographs.
Clause 6.2.3 of TPS 5 requires that the proposed development must conform to the provisions of the Codes including, relevantly, cl 6.2.9 of the Codes. The proposed development does not include any proposal to satisfy either the acceptable development provision in cl 6.2.9 A9 of the Codes or the performance criteria in cl 6.2.9 P9 of the Codes. In the circumstances, conformity to the Codes requires the imposition of a condition to give effect to cl 6.2.9 of the Codes.
Although the Town's officer's intention 'to provide the applicant with some direction whilst allowing flexibility for the applicant to propose their own solution' is understandable, the Town's alternative proposal to replace condition 4 with 'a more prescriptive condition' is preferable, as it is clear in its requirement and avoids subsequent dispute between the parties in relation to its satisfaction.
As noted earlier, in response to the Tribunal's direction to provide a proposal to satisfy the performance criteria in cl 6.2.9 P9 of the Codes, Ms Shewan suggested that she undertake landscaping in the front setback of the site to improve the streetscape amenity. Although landscaping would arguably '[e]nhance the streetscape appearance' of the existing dwelling, within the meaning of cl 6.2.9 P9 of the Codes, and 'provide an attractive setting for buildings', in satisfaction of part of the objective of element 2 of the Codes, the Tribunal considers that the Town's proposed alternative condition is preferable to landscaping. The Town's proposed alternative condition would enhance the streetscape appearance of the dwelling more significantly and more permanently than landscaping and 'contribute towards [an] attractive [streetscape] and security for occupants and passersby' in satisfaction of two aspects of the objective of element 2 of the Codes.
Providing at least one major opening from a habitable room in the street façade of the existing dwelling would, as evidenced by the examples in the photomontages, greatly reduce the building bulk, enhance the articulation of the dwelling and enable passive surveillance of the street. Furthermore, having regard to the scale and value of the proposed development, involving the construction of three new two-storey grouped dwellings at a cost of $741,380.00 (according to the application), the works required by the Town's proposed alternative condition to enhance the streetscape appearance of the existing dwelling are reasonable and appropriate.

Conclusion

The requirement of cl 6.2.3 of TPS 5, that the proposed development must conform to the provisions of the Codes, relevantly necessitates the imposition of a condition to enhance the streetscape appearance of the existing dwelling retained as part of the development under cl 6.2.9 of the Codes.
The Town's alternative proposed condition, requiring the existing dwelling to be upgraded by providing at least one major opening from a habitable room in the street façade, is preferable to both condition 4 as imposed by the Town and Ms Shewan's proposal to undertake landscaping in the front setback area of the site. The Town's proposed alternative condition is reasonable and appropriate in the circumstances of the case and should be imposed in place of condition 4.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.Condition 4 of the development approval granted by the respondent on 8 October 2010 to application 2010/158 for grouped dwellings at No 64 (Lot 247) Morgans Street, Port Hedland is deleted and the following condition is imposed in its place:
4.The existing dwelling is to be upgraded by providing at least one major opening from a habitable room in the northern wall facing Morgans Street.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER

Photomontages