Stefanovich and Anor and City of South Perth
[2007] WASAT 270
•17 OCTOBER 2007
STEFANOVICH & ANOR and CITY OF SOUTH PERTH [2007] WASAT 270
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 270 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:168/2007 | 19 JULY 2007 | |
| Coram: | MS R MOORE (SENIOR SESSIONAL MEMBER) | 17/10/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | MILAN STEFANOVICH SANDRA STEFANOVICH CITY OF SOUTH PERTH |
Catchwords: | Town planning Development application Refusal Twostorey dwelling Impact of garage boundary wall Boundary to boundary with respect to streetscape Overshadowing of adjoining property |
Legislation: | City of South Perth Town Planning Scheme No 6, cl 1.6, cl 7.5, cl 7.11 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.3.2, cl 3.9.1 |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent made on 23 May 2007 to refuse development approval for a two storey dwelling at No 11 (Lot 189) Gladstone Avenue, South Perth is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : STEFANOVICH & ANOR and CITY OF SOUTH PERTH [2007] WASAT 270 MEMBER : MS R MOORE (SENIOR SESSIONAL MEMBER) HEARD : 19 JULY 2007 DELIVERED : 17 OCTOBER 2007 FILE NO/S : DR 168 of 2007 BETWEEN : MILAN STEFANOVICH
- SANDRA STEFANOVICH
Applicants
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning - Development application - Refusal - Twostorey dwelling - Impact of garage boundary wall - Boundary to boundary with respect to streetscape - Overshadowing of adjoining property
Legislation:
City of South Perth Town Planning Scheme No 6, cl 1.6, cl 7.5, cl 7.11
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.2, cl 3.9.1
(Page 2)
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicants : Mr M Hardy
Respondent : Mr A Roberts
Solicitors:
Applicants : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal of a development application by the City of South Perth for a new two-storey dwelling at No 11 Gladstone Avenue, South Perth.
2 It was the view of the City of South Perth that the proposed dwelling did not comply with its scheme or policies in a number of areas. Of particular concern were the overshadowing of the adjoining property and the effect on existing streetscape character.
3 The Tribunal found that the proposed dwelling design was not acceptable with regard to overshadowing the adjoining property; that the garage boundary wall was not acceptable; and that the combination of garage and study boundary walls was not acceptable with respect to streetscape.
4 The application for review was therefore dismissed and the decision of the respondent affirmed.
Introduction
5 These proceedings involve an application brought by Mr M Stefanovich and Mrs S Stefanovich (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the deemed refusal by the City of South Perth (respondent or Council) of the development application for a two-storey dwelling at No 11 (Lot 189) Gladstone Avenue, South Perth (subject land or site).
Site and locality
6 The subject land is located at No 11 Gladstone Avenue, South Perth and is described as Lot 189 on Certificate of Title Volume 279 Folio 41A.
7 The site plan provided to the Tribunal shows a rectangular site with side and front boundary dimensions of 35.81 metres and 12.19 metres respectively and a site area of 436.5 square metres. The development application includes the demolition of the existing single storey brick and tile house on the subject site.
8 The subject land is situated on the south-western side of Gladstone Avenue between Mill Point Road and Jameson Street. The predominant built form in this section of Gladstone Avenue is single
(Page 4)
- houses with grouped or multiple dwellings at either end of the street. There is a variety of housing styles which include established character dwellings as well as contemporary dwellings, some of which are single storey and others two-storey.
9 The adjoining property to the north-west is Lot 190 (No 9) Gladstone Avenue. This is a modern two-storey dwelling with a carport sited in the front setback area.
10 The adjoining property to the south-east of the subject land is Lot 188 (No 13) Gladstone Avenue. This is an older dwelling which appears to date back to the first quarter of the 20th century. It has a reduced front setback of 1.04 metres and 2.17 metres to the front verandah. The north-west side setback is 0.7 metres.
Planning framework
11 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS).
12 Under the provisions of the City of South Perth Town Planning Scheme No 6 (TPS 6) the subject land is zoned "Residential" with a density code of R15.
13 Clause 1.6 of TPS 6 outlines the scheme objectives. The following general objectives are of relevance to this matter:
"(2) ...
(a) Maintain the City's predominantly residential character and amenity;
…
(c) Facilitate a diversity of dwelling styles and densities in appropriate locations on the basis of achieving performance-based objectives which retain the desired streetscape character and, in the older areas of the district, the existing built form character;
…
(f) Safeguard and enhance the amenity of residential areas and ensure that new development is in
- harmony with the character and scale of existing residential development;"
14 Clause 7.5 of TPS 6 lists matters for the Council to have regard to when considering an application for planning approval. Of specific relevance to this matter are the following:
"(a) the objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan and the [MRS];
(b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment which has been granted consent for public submissions to be sought;
(c) the provisions of the [Residential Design Codes of Western Australia (2002)] and any other approved Statements of Planning Policy of the Commission prepared under Section 5AA of the Act;
…
(i) the preservation of the amenity of the locality;
…
(n) the extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details;
…
(w) any relevant submissions received on the application, including those received from any authority or committee consulted under clause 7.4;"
15 Relevant to this matter are the Residential Design Codes of Western Australia (2002) (Codes) and the following policies adopted by Council:
• Precinct 5 – Arlington (P5);
(Page 6)
- • Policy P376_T – Residential Boundary Walls (P376_T)
• Policy P370_T – General Design Guidelines for Residential Development (P370_T)
Proposed development
16 The proposed development is a two-storey painted rendered brick dwelling with a sheet metal roof. The ground floor consists of a portico, double garage, home theatre, study, laundry, bathroom and open plan kitchen/family/dining area opening onto an alfresco area. The upper floor contains four bedrooms with walk-in robes, an ensuite, a bathroom, a separate WC, and an area marked "retreat" opening on to a balcony overlooking the street.
17 The ground floor plan shows a double garage with attached store situated with a wall on the south-east side boundary and a setback of 4.5 metres from the street boundary. The side boundary wall measures 8.3 metres in length and approximately 2.5 metres in height. There is a second boundary wall proposed on the north-west boundary of the subject land. This boundary wall is to the study and is setback 8.5 metres from the street boundary. The proposed boundary wall measures 4.4 metres in length and approximately 2.9 metres in height.
18 The upper floor plan shows obscure glazing to windows on the north-west and the south-east elevations (including bedroom 2). The elevations show these windows as obscure and fixed, with the exception of an awning section to the bathroom and two awning windows to bedroom 2.
Council's refusal
19 The Council received two submissions regarding the proposed development. The owners of the adjoining property to the north-west indicated a non-objection to the study boundary wall provided the boundary wall and fencing was to their satisfaction. The owners of the property to the south-east (No 13 Gladstone Avenue) objected to the proposed development for two reasons. These reasons related to the effect of the garage boundary wall on their habitable rooms; and the overshadowing of the development on their habitable rooms.
20 The applicants lodged an application for review on the ground of deemed refusal under cl 7.11 of TPS 6. The respondent then passed a resolution in respect of the proposed application on 23 May 2007 as follows.
(Page 7)
- "(1) The proposal conflicts with the objectives (a) and (f) listed within clause 1.6 'Scheme Objectives' of ... [TPS 6].
(2) The proposal conflicts with matters (a), (b), (c), (i) and (n) listed within Clause 7.5 'Matters to be Considered by Council' of TPS 6.
(3) The proposed development satisfies neither the Acceptable Development nor the associated Performance Criteria provisions contained within clause 3.9.1 'Solar Access for Adjoining Sites' of the [Codes].
(4) The proposed development conflicts with the provisions of ... [P376_T] and satisfies neither the Acceptable Development nor Performance Criteria provisions contained within clause 3.3.1 'Buildings Set Back from the Boundary' of the [Codes].
(5) The proposed development conflicts with the Acceptable Development provisions contained within clause 3.8.1 'Visual Privacy' of the [Codes] and the proponent has not submitted the information identified within clause 2.4.6 'Special Information Requirements' of the Codes to allow this component of the development to be assessed against the associated Performance Criteria.
(6) The proposed setbacks to the upper floor south-eastern wall of the building do not comply with those prescribed in Table 2b 'Boundary Setbacks' and clause 3.3.1 'Buildings Set Back from the Boundary' of the [Codes] and the proponent has not submitted the information identified within clause 2.4.6 'Special Information Requirements' of the Codes to allow this component of the development to be assessed against the associated Performance Criteria.
(7) The crossover is set back less than the 3.0 metre minimum from the existing Street tree as required by the City of South Perth City Environment Department.
(8) The crossover has not been designed in accordance with the requirements contained within the City of South Perth Specification SP30 'Standard Detail for Vehicular Crossovers'.
(Page 8)
- (9) The proposed vehicular driveway on the development site is excessively wide, has a dominant impact on the Streetscape and is not set back from the side boundary, contrary to the provisions identified within Clause 3.5.4 'Vehicular Access' of the [Codes]."
The issues
21 The following three issues arise for determination in this review:
1) Whether the proposed design is acceptable with regard to overshadowing.
2) Whether the garage boundary wall is acceptable generally.
3) Whether the garage and study boundary walls are acceptable with respect to streetscape.
22 The Tribunal will address each issue in turn.
Whether the proposed design is acceptable with regard to overshadowing
23 With regard to the issue of overshadowing generally, it is common ground that the proposed design does not satisfy the acceptable development requirements in cl 3.9.1 of the Codes. These requirements specify that for adjoining properties with density codings of R25 or less, the shadow cast by the new development at midday on 21 June shall not exceed 25% of the site area of the adjoining lot. The proposed development will cast a shadow of 26.7% of the site area of Lot 188 (No 13) Gladstone Avenue.
24 The proposed design is therefore to be assessed against the performance criteria in cl 3.9.1 "Solar Access for Adjoining Sites" which are as follows:
"P1 Development designed with regard for solar access for neighbouring properties taking account the potential to overshadow:
• outdoor living areas;
• major openings to habitable rooms;
• solar heating devices;
- • or balconies or verandahs."
25 With regard to the issue of overshadowing, a shadow diagram was provided as an attachment to the witness statement of Mr Cunningham, a planner and witness for the applicant. This shadow diagram showed that a part of the outdoor living area to the rear of Lot 188 (No 13) Gladstone Avenue would be shaded by the proposed dwelling at midday on 21 June. The extent of overshadowing is not easily quantifiable from this diagram but is likely, in the view of the Tribunal, to be approximately 24% of the outdoor area.
26 Photographs of this outdoor area showing a shade sail have also been provided as an attachment to Mr Cunningham's witness statement. The shade sail is fixed to three steel columns and the roof to the rear of the dwelling. Planning permission was not required but a building licence was issued for it's construction.
27 It was Mr P Cunningham's original opinion that "much of the outdoor living area of Lot 188 is already shaded (by the shade sail) and would therefore not be affected by any overshadowing resulting from the proposed development". Under cross-examination by Mr Roberts, representing the respondent, Mr Cunningham agreed that "the shade sail itself filters natural light" and that "the superimposition of shadowing on a shade sail does have an impact".
28 Mr Hardy, the applicants' representative, argued that the shade sail was a semi-permanent structure and should be given some consideration when assessing the impact of the overshadowing of the outdoor living area. The Tribunal agrees with Mr Hardy's position but is of the view that it does not have before it evidence that would indicate the magnitude of that impact. Also, the semi-permanent nature of the shade sail indicates a possibility that during the winter months (when overshadowing is measured) there may be no shade sail in place at all.
29 The Tribunal is not satisfied that the performance criteria regarding the issue of overshadowing of adjoining outdoor living areas has been met.
30 The second consideration of the performance criteria is the impact on major openings to habitable rooms. The Tribunal was aided by the provision of a diagram prepared by Mr S Bain, a planner and expert witness for the respondent, illustrating the windows on the adjoining Lot 188 that would be affected by reduced solar access. It was agreed by the expert witnesses that the affected major openings were the
(Page 10)
- 1.8 metres x 0.9 metres clear glazed window to the bedroom and the 1.2 metres x 0.7 metres clear glazed window to the kitchen.
31 It was Mr Cunningham's evidence that given the orientation of the subject land and its width of 12.1 metres, overshadowing of the bedroom and kitchen windows is unavoidable unless the second floor was set back significantly from the boundary. It was Mr Bain's opinion that the upper floor could be located further to the north-western boundary in order to reduce overshadowing and that "the design doesn't reflect the site conditions".
32 Mr Cunningham was asked by Mr Roberts "how this development has been designed with regard for solar access to the adjoining property". Mr Cunningham's response was that the impact on the neighbouring property's outdoor living area was minimal given the existence of the shade sail, and that overshadowing of the bedroom and kitchen windows was unavoidable.
33 It is the view of the Tribunal that the performance criteria of cl 3.9.1 of the Codes have not been achieved by the proposed design due to the reduction in solar access to the adjoining property's outdoor living area, and major openings to the bedroom and kitchen.
34 The Tribunal is satisfied that the subject land is capable of housing a two-storey dwelling that complies with either the acceptable development standards of a maximum of 25% overshadowing or the performance criteria as discussed above. In any case, the proposed development does not satisfy either.
Whether the garage boundary wall is acceptable generally
35 The acceptable development standards in cl 3.3.2 "Buildings on Boundary" of the Codes refers specifically to the Council's local planning policies. The respondent's P376_T is concerned with the amenity issues relating to boundary walls.
36 The first policy provision of P376_T is as follows:
"1. Approval will not be granted for a boundary wall if such wall would adversely affect the amenity of an adjoining lot. In assessing the effect on amenity, Council will have regard to the effect any proposed wall would have on:
• the streetscape character;
- • the outlook from the front of an adjoining dwelling or its front garden, if the proposed wall is located forward of that adjoining dwelling;
• the amount of daylight being admitted to a habitable room window on an adjoining lot;
• the amount of winter sunshine being admitted to an area of private open space on an adjoining lot;
• the amount of glare caused by the wall due to the reflective value of its surface; and
• existing views from an adjoining building.
• outlook from habitable room windows on an adjoining lot."
37 The issue of streetscape character will be discussed later with regard to the combined effect of two boundary walls.
38 In order to assess the effect of the proposed garage boundary wall, it was useful to refer to the diagram prepared by Mr Bain illustrating the shadow from the garage wall on the adjoining property wall at Lot 188. This diagram shows that approximately 50% of the clear glazed bedroom window will be in shadow at 12 noon on the 21 June as a direct result of the garage boundary wall.
39 P376_T states that "approval will not normally be granted if the amount of daylight to a habitable room window on an adjoining lot is reduced".
40 Clause 3.3.2 lists the following performance criteria:
"P2 Buildings 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."
41 In this case, notwithstanding the first three criteria, direct sunlight to a major opening of a habitable room on the adjoining property is restricted.
42 The Tribunal is therefore of the view that the garage boundary wall does not satisfy either the respondent's P376_T nor the performance criteria listed in cl 3.3.2 of the Codes.
Whether the garage and study boundary walls are acceptable with respect to streetscape
43 As described previously, this development proposes boundary walls to both side boundaries - to the garage and to the study. The garage wall has a 4.5 metre street setback and the study wall has an 8.5 metre street setback. The respondent's concern is the visual impact of these two boundary walls on the existing streetscape character.
44 P376_T states that "walls will normally only be permitted to abut one side boundary of a lot. However, the siting of a wall on a side boundary does not preclude the siting of another wall on the rear boundary of the same lot".
45 It was Mr Bain's evidence that building boundary to boundary is contrary to the existing streetscape character, and the proposed development would appear wider than other houses and therefore out of context.
46 With regard to the existing streetscape character, the view of the subject site showed that there exists a wide variety of building ages, styles, heights and setbacks. Gladstone Avenue, as described by Mr Hardy, "is a long established suburban residential street which is manifestly undergoing a period of transition".
47 Mr Roberts agreed with the description of Gladstone Avenue as a street in transition but stated that this transition did not involve boundary to boundary development. In the case of boundary walls, while there was evidence of dwellings built to one side boundary, there was no evidence of dwellings built to both side boundaries.
48 It was Mr Hardy's view that given the variety of existing setbacks in the street and the fact that the proposed boundary walls are staggered by
(Page 13)
- 4 metres, a passer-by would not appreciate the difference of one side setback or no side setbacks.
49 The Tribunal is of the view that the existing streetscape character is varied and likely to change in respect to building form, style and setbacks. The existing streetscape character does include contemporary dwellings which have been built to one boundary but none have been built to both boundaries. Both of the adjoining dwellings are set back from both side boundaries. The Tribunal agrees with Mr Roberts when he says that P376_T finds expression in the built form of Gladstone Avenue and that to build boundary to boundary will be out of character with the streetscape.
50 The Tribunal, therefore, finds that the garage and study boundary walls are not acceptable with respect to streetscape and in this case, can find no cogent reason why the proposed dwelling should not comply with P376_T.
Conclusion
51 The Tribunal has determined that the proposed dwelling does not satisfy either the acceptable development standards or the performance criteria of the Codes with regard to overshadowing of the adjoining property, in particular the overshadowing of major openings to the kitchen and bedroom; and reduced solar access to the outdoor living area.
52 The Tribunal has also determined that the proposed garage boundary wall does not satisfy either the respondent's P376_T or the performance criteria of the Codes with regard to buildings on the boundary. In this case, direct sunlight to a major opening of a habitable room will be restricted.
53 With regard to the issue of building boundary to boundary, the Tribunal found that P376_T reflected the built form of Gladstone Avenue in that no traditional or contemporary building was currently built to both side boundaries. The Tribunal saw no reason to depart from this policy and determined that building both the garage and the study walls on the boundary would not be acceptable to the existing or expected streetscape character.
54 The Tribunal has therefore decided that the application for review is dismissed and the decision of the Council to refuse development approval is affirmed.
(Page 14)
Orders
55 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 23 May 2007 to refuse development approval for a two-storey dwelling at No 11 (Lot 189) Gladstone Avenue, South Perth is affirmed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER
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