Simic and City Of Bayswater
[2007] WASAT 245
•19 SEPTEMBER 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SIMIC and CITY OF BAYSWATER [2007] WASAT 245
MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 SEPTEMBER 2007
FILE NO/S: DR 175 of 2007
BETWEEN: DEJAN SIMIC
Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Grouped dwelling - Parapet wall on boundary - Sunlight and ventilation - Overshadowing - Visual appearance - Setback - Amenity of adjoining property - Town planning policy - Residential Design Codes of Western Australia (2002)
Legislation:
City of Bayswater Town Planning Scheme No 24
Residential Design Codes of Western Australia (2002), cl 2.6.2, cl 3.3.2
Result:
The application for review is allowed
The decision of the respondent is varied to delete Condition 1
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The respondent conditionally approved an application to construct a two‑storey grouped dwelling on a residential property in Noranda, subject to a condition requiring a 1 metre setback of a parapet wall otherwise proposed to be located on the side boundary of the lot.
The applicant sought a review of the respondent's decision to impose a condition requiring the setback of the parapet wall on grounds that the reasons for such a condition tendered by the respondent were unsustainable and that the proposed location of the parapet wall was otherwise compliant with the relevant regulatory instruments, including the local planning scheme, town planning policies and the Residential Design Codes of Western Australia (2002).
The Tribunal accepted the applicant's argument that the reasons for imposing the condition were unsustainable and allowed the application for review. Accordingly, the condition in question, requiring the 1 metre setback of the parapet wall on the side boundary, was deleted.
Introduction
This is an application for review of the decision of the respondent to impose a condition upon its approval to construct a grouped dwelling at Lot 146 Noranda Avenue, Noranda, requiring that a parapet wall enclosing the proposed garage should be set back one metre from the eastern boundary of the Lot.
The application for the grouped dwelling was submitted for consideration of the respondent on 21 August 2006.
The respondent conditionally approved the application, including imposition of the condition requiring the setback of the parapet wall, on 16 April 2007.
On 10 May 2007, the applicant lodged an application for review by the State Administrative Tribunal (the Tribunal) of the respondent's decision to impose the parapet wall setback condition.
The proposed development and its context
Lot 146 Noranda Avenue (the land) is a south‑facing lot of 789 square metres in the suburban locality of Noranda in the local government area of the City of Bayswater.
The western portion of the land is presently occupied by a single‑storey brick and tile dwelling, whilst the eastern portion is presently vacant in anticipation of approval and construction of the two‑storey grouped dwelling the subject of this review.
Residential properties in the area appear to be similar to Lot 146 in that they are regular in shape and of comparable size. The locality appears to be a well established residential neighbourhood.
The dwelling located on Lot 147 is adjacent to the land on its eastern boundary and thus affected by the proposed development. The dwelling in question is single‑storey, of brick and tile construction and set back about 2.5 metres to 3 metres from the common boundary with Lot 146. The wall of the dwelling facing Lot 146 encloses a garage at the front. A single window opening, associated with a living space behind the garage, faces westwards onto the boundary fence line between the two properties. The window is about 7 metres to the rear of the front building line.
The proposed development comprises an additional grouped dwelling to be located on the eastern portion of Lot 146. The dwelling is to be of two storeys, brick and tile construction and comprise four bedrooms and two bathrooms, and be serviced by an enclosed garage/storeroom abutting the eastern boundary. The boundary parapet wall enclosing the garage extends 8 metres in length from the front of the building, at an average height of 2.7 metres. Because the proposed dwelling is intended to be set forward of the dwelling on Lot 147, the wall terminates 1.1 metres to the south of the window opening described on Lot 147. The second storey component of the proposed dwelling above the garage is set back 1.2 metres from the common boundary, with an overall wall height of 5.35 metres.
Town planning scheme and policy provisions
Development of the land is regulated by the City of Bayswater Town Planning Scheme No 24 (TPS 24 or Scheme) which prescribes the zoning of the land as Residential R17.5/25.
TPS 24 generally requires that residential development shall conform to the provisions of the Residential Design Codes of Western Australia (2002) (Codes), except in circumstances where variations arise either in the Scheme or in the case of a local planning policy.
The Codes set out Performance Criteria for "Buildings on Boundary". Clause 3.3.2 provides:
"P2Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development; and
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."
In order to meet the Performance Criteria above, the Codes set out Acceptable Development standards which include the following pertinent circumstances:
"A2Except where otherwise provided for in an adopted Local Planning Policy, walls built up to a boundary behind the front setback line within the following limits, subject to the overshadowing provisions of Element 9:
…
(ii)In areas coded R20 and R25, walls not higher than 3.0 [metres] with an average of 2.7 [metres] up to 9 [metres] in length up to one side boundary …"
Element 9 of the Codes refers to the Design for Climate Requirements and, in particular, the protection of solar access for neighbouring properties. The relevant Acceptable Development standard describes that development shall be designed so that its shadow cast at midday on 21 June onto an adjoining property should not exceed the limit of 25% of the site area of any adjoining properties coded R25 and lower.
The respondent has adopted Town Planning Policy TP‑P 2.13 ‑ Boundary Walls in Residential Areas (Policy 2.13). Policy 2.13 provides, amongst other things, that:
•The policy is made pursuant to cl. 2.6.2 of the Codes and alters the Acceptable Development criteria for "Buildings on Boundary" as otherwise provided by cl. 3.3.2 of the Codes.
•The policy provides that where a development includes a wall closer than 1 metre to a boundary, the boundary wall shall not be deemed "as of right" as provided by cl 3.3.2 of the Codes.
•The policy describes the requirement for a process of consultation with the affected adjoining landowner and subsequent consideration and determination by the respondent of any submission arising.
The decision of the respondent
The respondent granted approval to the application for an additional grouped dwelling on the land subject to several conditions including Condition No 1 which requires that:
"The garage/store parapet wall of the east boundary to be setback 1.0 metre."
The respondent's argument
The respondent's argument in support of the imposition of Condition No 1 requiring the 1 metre setback of the garage wall is founded on the assumption that location of the wall on the boundary, as originally proposed, would represent an unacceptable impact on the amenity of the adjoining premises.
Detailing the reasons for the negative impact on the adjoining premises, the respondent argues that the wall, which attains a height of 2.9 metres, is 1.1 metres higher than a standard fence and therefore is capable of unacceptably reducing sunlight and ventilation to the neighbouring property. In particular, the window opening to the living space at the rear of the garage on the neighbouring property would be subject to shadow created by the wall at certain times of the day, thus resulting in loss of sunlight to the habitable room.
A witness statement by Councillor Marlene Robinson on behalf of the respondent refers to the Performance Criteria of the Codes which specify that building to the boundary should not have any adverse affect on the adjoining property and should ensure that direct sun to habitable rooms is not restricted.
Councillor Robinson affirmed the view of the respondent that the proposed boundary wall would affect the amenity of the adjoining property by the loss of sunlight to the living space in question.
Additionally, Councillor Robinson emphasised the respondent's opinion that the proposed wall would also pose a significant adverse effect on the amenity of the adjoining property because of its visual appearance.
Applicant's argument
The applicant argues that the garage wall on the boundary should be allowed as it conforms to the relevant Performance Criteria of the Codes. The configuration of the proposed wall makes effective use of space, enhances privacy and otherwise improves the amenity of the development.
The proposal conforms to the Acceptable Development standards of the Codes with respect to the dimensions of the boundary wall.
Mr Richard Rodic, a qualified town planner, provided a witness statement on behalf of the applicant.
Mr Rodic identified that the proposed boundary wall will be located adjacent to a driveway and blank wall of the adjoining property. There are no outdoor living areas or major openings to habitable rooms opposite the wall and therefore the amenity of the neighbour will not be significantly affected.
In response to the issue of loss of sunlight and ventilation to the habitable room located behind the garage on the adjoining property, Mr Rodic asserted that because the window in question is approximately 1.1 metres beyond the extent of the proposed wall and lies east of the applicant's property, no overshadowing will occur. In this regard, Mr Rodic referred to a diagram accompanying his witness statement illustrating the shadows cast by the proposed development at midday on 21 June; that is, as measured in accordance with the relevant Acceptable Development standards of the Codes.
On the question of visual impact of the proposed wall, Mr Rodic was of the view that the wall would have little impact given that it would be of an acceptable rendered and painted finish and would only be visible to the neighbour, for the most part, when entering and exiting the property. The window to the rear (beyond the extent of the boundary wall) would directly outlook onto a dividing fence beyond which the proposed dwelling is set back approximately 1.5 metres.
Analysis
The issue arising from this review is whether there are sustainable grounds under the application of Policy 2.13 to warrant departure from the Performance Criteria and the Acceptable Development standards of the Codes which would otherwise allow building onto the boundary as proposed in this development.
The Tribunal notes that the respondent's planning officers, in a report on this proposal compiled for consideration of the respondent, concluded that the proposed development complies with the Codes.
Policy 2.13 appears to be deficient in setting out any useful rationale for its existence other than to require consultation with the adjoining landowner to ascertain if any objections arise as a result of an application for a boundary wall. There are no substantive additional objectives or measures beyond the Performance Criteria of the Codes identified within Policy 2.13 against which to assess any objection.
The Tribunal concludes that Policy 2.13 is really nothing more than an instrument of process which is designed to allow the neighbour opportunity for comment on a boundary wall proposal. There is nothing in that process, other than the opportunity for articulation of reasoned comment, to assist the responsible authority in determining the proposal. It therefore remains for the Tribunal to consider any objections to the proposed boundary wall against the Performance Criteria and Acceptable Development standards of the Codes.
The respondent identified that the proposed wall affected the amenity of the neighbouring property by means of interference with sunlight and ventilation. The Tribunal rejects this argument based on the standards applied under Element 9 of the Codes which identifies that overshadowing should be measured by the application of the "shadow cast by a building at midday on 21 June". The diagram of the midday shadow cast provided by the applicant clearly shows that the neighbouring property is not affected.
Even if the circumstance of the afternoon westering sun shadow is contemplated, as it appears to have been by the respondent, then it appears evident from the building plans and elevations that the main impact of shadowing will be caused by the overall two‑storey height of the proposed dwelling rather than the boundary wall which is very much lower and is, in any case, situated south of the only possibly affected window opening.
The respondent has not identified why the boundary wall would have any negative effect on the "ventilation" of the adjoining property. The Tribunal is therefore unable to accept this particular argument is sustainable.
The Tribunal is satisfied that the proposed boundary wall does not conflict with the Performance Criteria or Acceptable Development standards in relation to the Design for Climate Requirements of the Codes.
On the question of the visual appearance of the proposed wall, it would seem that any visual impact would be little altered by the alternative setback of 1 metre. The applicant's description of a rendered, painted finish of the wall, otherwise compliant with the dimensional limits of the Codes, appears to be conventional and uncontroversial. No other reasons for presumption that the visual appearance of the wall is unacceptable were tendered by the respondent. In the circumstances, the argument that the visual appearance of the wall is problematic is untenable.
Conclusion
For the reasons set out in the preceding Analysis section, the Tribunal concludes that the application for review of the respondent's decision to impose Condition No 1 on its approval of the proposed grouped dwelling should be upheld and that Condition No 1 should therefore be deleted.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent, made on 16 April 2007, to grant conditional development approval for a grouped dwelling at Lot 146 Noranda Avenue, Noranda is varied so that Condition No 1 requiring:
"1.The garage/store parapet wall of the east boundary to be setback 1.0 metre;"
is deleted.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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