STEVENSON and CITY OF SUBIACO - [2017] WASAT 18

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: STEVENSON and CITY OF SUBIACO [2017] WASAT 18

MEMBER: MS R MOORE (MEMBER)

HEARD: 20 AND 21 SEPTEMBER 2016

DELIVERED : 16 DECEMBER 2016

PUBLISHED : 23 JANUARY 2017

FILE NO/S: DR 28 of 2016

BETWEEN: ROSLYN STEVENSON
Applicant
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning - Development application - Refusal of upper floor addition to single storey California Bungalow - Whether proposal satisfies design principles of Residential Design Codes for street setbacks - Whether proposal should be approved having regard to Daglish Precinct Policy objectives - Whether proposal complies with wall and overall building height requirements in Scheme

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 22, cl 23, cl 27(4), cl 37, cl 38, cl 41(2), cl 42(1), cl 42A
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), Pt 7 Sch 2, cl 60, cl 61, cl 61(1)(c), cl 67
Planning and Development Act 2005 (WA), s 252(1), s 257B
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 Residential Design Codes, cl 2.1.4, cl 2.4, cl 2.5, Pt 5 cl 5.1, cl 5.1(b), cl 5.1(e), cl 5.1.2, Pt 7 cl 7.1, cl 7.3, cl 7.3.1(a), cl 7.3.1(b)

Result:

Application for review dismissed
Respondent's decision to refuse development affirmed

Summary of Tribunal's decision:

This matter involved an application for development approval of an upper floor addition to an existing dwelling at No 11 Richardson Terrace, Daglish. The existing dwelling was a single storey California Bungalow constructed circa 1935 and located within subprecinct 3 of the Daglish Precinct.
The City of Subiaco refused the application for three reasons. The City was of the view that the proposal would be inconsistent with the established streetscape character; the height and bulk and scale of the addition would be inconsistent with the established neighbourhood character; and the wall height would be inconsistent with the established streetscape character.
The applicant argued that the proposal satisfied the deemedtocomply provisions of the R Codes in relation to street setbacks and its provisions should not be amended or replaced by the City's Daglish Precinct Policy. The Tribunal disagreed and found that the provisions of the Daglish Precinct Policy were consistent with the design principles of the R Codes and could be applied.
The Tribunal found that the proposal did not satisfy the R Codes' deemedtocomply requirements for street setbacks (as amended by the Daglish Precinct Policy) nor did the proposal satisfy the R Codes' design principles for street setbacks because the proposed upper floor would not be consistent with or contribute positively to the established streetscape of Richardson Terrace.
In relation to the second issue, the Tribunal found that the proposal did not achieve the objectives of the Daglish Precinct Policy because the proposed upper floor would not reflect the scale or character of the existing relatively intact streetscape which is comprised of predominantly single storey California Bungalows with open front setbacks.
Finally, the Tribunal found that the proposed upper floor addition with a wall height of 6.8 metres would be out of context and the increased bulk and scale would have an undue adverse effect on the amenity of the locality.
The Tribunal therefore ordered that the application for review be dismissed and the decision of the respondent to refuse the development application be affirmed.

Category: B

Representation:

Counsel:

Applicant: Mr M Stuart (As Agent)
Respondent: Mr J Algeri (As Agent)

Solicitors:

Applicant: Planning Outcomes WA
Respondent: Altus Planning & Appeals

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

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application brought by Ms Roslyn Stevenson (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of the decision of the City of Subiaco (City or respondent) made on 21 December 2015 to refuse development approval for an upper floor addition to the existing dwelling at No 11 (Lot 149) Richardson Terrace, Daglish (site or subject site).
The Tribunal referred the matter to mediation and in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) invited the City to reconsider its original decision in light of amended plans. At its meeting on 24 May 2016, the City resolved to reaffirm its original decision to refuse the development application for the following reasons:
1.The proposal does not satisfy the provisions of Local Planning Policy 4.2 Daglish Precinct and the design principles of design element 5.1.2 Street Setback (P2.1) of the R- Codes in so far as the proposal is inconsistent with the established streetscape character; and
2.The proposal does not satisfy the provisions of Local Planning Policy 4.2 Daglish Precinct and the design principles of design element Street Setback 5.1.2 (P2.2) in that the height and bulk of the addition will be inconsistent with the established neighbourhood character in Richardson Terrace; and
3.The proposal does not meet clause 42(1)(b) of Town Planning Scheme No. 4, on the basis that the wall height is inconsistent with the established streetscape character.
The parties agreed that the plans to be considered for development approval are those included at pages 57 to 63 of the respondent's s 24 bundle (Exhibit 2). These plans are identified as Revision I dated 15 March 2016 and include Sheets 1 to 7.

Site and locality

The subject site has an area of 690m² and is irregular in shape with a 37.64 metre frontage to Richardson Terrace, a 14.79 metre frontage to the rightofway, a 24.26 metre boundary to No 57 Stubbs Terrace and a 43.51 metre boundary to Nos 53 and 55 Stubbs Terrace.
The Tribunal had the benefit of a site view in the company of the parties, their representatives and their planning experts on the morning of the hearing. Mr Matthew Stuart, a town planner, appeared as both the applicant's representative and expert planning witness. Mr Joe Algeri, a town planner, represented the respondent in the proceedings and Mr David Miliken, a town planner, appeared as an expert planning witness for the respondent.
The existing dwelling on the site is a single storey brick and tile California Bungalow constructed circa 1935 and contains two bedrooms, a lounge, a kitchen, a dining room, a bathroom, a sitting room, a laundry, a WC, a study and an attached single width garage. There is also a studio/cabin which is a separate single storey building located to the northeast of the dwelling. The dwelling is orientated so that the front door and porch face the rightofway. There are no existing fences to either the rightofway or Richardson Terrace and the applicant submits that the unnamed rightofway (rather than Richardson Terrace) should be considered the primary street.
The subject site is located within the Daglish Precinct of the City of Subiaco and specifically within subprecinct 3. According to the precinct description in the City of Subiaco Planning Policy No 4.2 Daglish Precinct (LPP 4.2), subprecinct 3 contains inter-war housing, 'some of which was built during the 1930s under the Workers' Homes Act, close to the railway line'. The precinct description in LPP 4.2 continues as follows:
The inter-war housing close to the railway line (sub-precinct three) has been designed on garden suburb principles with leafy streets and a highly connected grid system of street blocks. Lots here are typically larger in size and characterised by large, open front setback areas. There is access to on-site parking from existing crossovers from the primary street, however, the front setback areas are predominantly devoid of any car parking structures. A network of rear sealed Rights of Way also exists within this sub-precinct providing opportunities for alternative access.
The relevant streetscape in respect of this matter is the length of Richardson Terrace between Troy Terrace and Stubbs Terrace. Richardson Terrace is curved and contains 17 properties, 15 of these have a Richardson Terrace street address and two have a Lutey Avenue street address. The majority of the properties have a secondary access from either a rightofway or an alternative street. At the Troy Terrace end of Richardson Terrace, both No 22 Richardson Terrace and No 14 Lutey Avenue have upper floor additions. It should also be noted that No 55 Stubbs Terrace, immediately adjacent to the subject site to the southeast, has an upper floor. The remaining properties in Richardson Terrace are single storey and at least 13 properties appear to have been constructed during the interwar period.

The proposal

The proposal the subject of this review is to add an upper floor to the existing dwelling. The northwest wall of the upper floor will be set back 2.5 metres from the ground floor parallel to the rightofway and because of the location of the existing dwelling in the southwestern corner of the site, the upper floor walls will have a setback from Richardson Terrace of at least 9 metres.
The upper floor addition is not large in area (approximately 76m²) and will contain two bedrooms, a bathroom, a WC and a 'retreat'. The upper floor is to be constructed with acrylic rendered walls and a tiled roof with a pitch to match the existing dwelling. The proposed windows are a combination of awning hung and fixed panels and there is a 100 millimetre projecting corbel running around the upper level. The maximum wall height is 6.8 metres above natural ground level and the maximum overall height is 8.02 metres above natural ground level.

Planning framework

The site is zoned Residential under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme) and has a residential density coding of R15. A single dwelling is a permitted use within the Residential R15 and R20 zone providing the use complies with the relevant development standards and the requirements of the Scheme.
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) state at reg 10(4) that the provisions in Sch 2 of the LPS Regulations are deemed provisions as referred to in s 257B of the PD Act, 'and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text'. Section 257B of the PD Act provides the following:
…
(2)Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3)If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
…
Consequently, in relation to the requirement for development approval, Pt 7 of Sch 2 of the LPS Regulations applies in place of cl 22 and cl 23 of TPS 4. Clause 60 of the deemed provisions (Sch 2 of the LPS Regulations) requires that a person must not commence or carry out any works on land in the Scheme area unless they have obtained development approval of the local government or the development does not require approval under cl 61 of the deemed provisions. Clause 61(1)(c) of the deemed provisions provides that development approval is not required for:
the erection or extension of a single house on a lot if the R Codes apply to the development and the development satisfies the deemed to comply requirements of the R Codes unless the development is located in a place that is
…
(iii)included on a heritage list prepared in accordance with this Scheme; or
(iv)within an area designated under the Scheme as a heritage area[.]
In relation to the factors to be considered when determining whether to consent to an application for development approval, cl 67 of the deemed provisions effectively replaces the provisions of cl 27(4) of TPS 4.
The Tribunal is therefore required to have due regard to the following relevant matters set out in cl 67 of Sch 2 of the LPS Regulations:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(k)the built heritage conservation of any place that is of cultural significance;
(l)the effect of the proposal on the cultural heritage significance of the area in which the development is located;
(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
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development[.]
As stated earlier, the subject site is located within the Daglish Precinct and in accordance with cl 37 of TPS 4 the City has prepared and adopted a precinct planning policy, LPP 4.2.
Clause 38 of TPS 4 provides that '[u]nless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in the Scheme Text, the planning policies and the R-Codes'.
Clause 41(2) of TPS 4 provides that, in addition to other matters that it is required or permitted to consider, the local government shall have regard to the following objectives when considering an application for development approval:
(a)the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community;
(b)the protection of residential areas from any interaction between different intensities of uses or incompatible uses which could be objectionable or detrimental to the amenity of any neighbourhood;
(c)the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
(d)the protection of the privacy of indoor and outdoor living spaces of dwellings;
(e)the encouragement of new concepts of residential design, including the development of new types of residential accommodation and comprehensive development projects;
(f)to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock.
(g)to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping;
(h)to assist in the rejuvenation of degraded streetscapes;
(i)to promote and encourage design that incorporates sustainability principles, including but not limited to solar passive design, energy efficiency, reduction in greenhouse gas emissions, water conservation, waste management and recycling;
(j)to promote and encourage design that incorporates crime prevention through environmental design principles including but not limited to, appropriate fencing, appropriate landscaping, casual surveillance of public open spaces and adequate pedestrian movement sightlines.
Clause 42(1) of TPS 4 provides for the special application of State Planning Policy 3.1 Residential Design Codes (R Codes) as follows:
Residential Zone: R Code Density R15 and R20
(a)Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b)The local government may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the local government is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
Clause 42A of TPS 4 refers to the determination of an application where the wall or overall height is noncompliant and provides the following:
(1)If a development is the subject of an application for planning approval and does not comply with the maximum overall height or the maximum wall height referred to in clause 42, then, despite the non-compliance, the local government may approve the application where:
(a)the local government is satisfied that:
(i)the noncompliance will have no undue adverse effect on any adjoining residential land or the amenity of the locality; or
(ii)the wall or overall height which is noncompliant is compatible with the wall and overall heights of surrounding developments that are designed for residential purposes and are considered by the local government to enhance the streetscape;
(b)the wall/overall height which is non-compliant:
(i)meets the Acceptable Development standards of the Residential Design Codes in relation to setbacks; or
(ii)is necessitated by a sloping site and would be unlikely to occur if the site had been level; or
(iii)is the result of an irregular roof design and is unlikely to have occurred if the proposed development had a conventionally shaped roof.
(2)For the purpose of this clause the expression 'surrounding development' may be defined in a planning policy.
(3)For the purpose of this clause a 'conventionally shaped roof' means a uniform flat, pitched, hipped, or skillion roof.

Issues

The respondent identified the following three issues as arising for determination in this review:
1)Whether the proposed development should be approved having regard to the design principles in cl 5.1.2 (Street Setback) of the R Codes;
2)Whether the proposed development should be approved having regard to the objectives of LPP 4.2; and
3)Whether the proposed development should be approved having regard to cl 42(1) and cl 42A of TPS 4.
The Tribunal has attempted to address each issue in turn but there are significant overlaps in the discussion of each issue.

Issue 1 Should the proposed development be approved having regard to the design principles in cl 5.1.2 (Street Setback) of the R Codes?

The purpose of the R Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia with the following general objectives:
(a)To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives.
(b)To encourage design consideration of the social, environmental and economic opportunities possible from new housing and an appropriate response to local amenity and place.
(c)To encourage design which considers and respects heritage and local culture.
(d)To facilitate residential development which offers future residents the opportunities for better living choices and affordability.

Clause 2.1.4 of the R Codes states that all residential development is to comply with the requirements of the R Codes and approval is required if the proposed residential development:
(a)does not satisfy the deemed-to-comply provisions of Parts 5 and/or 6 of the R-Codes as appropriate; or
(b)proposes to address a design principle of Parts 5 and/or 6 of the RCodes which therefore requires the exercise of judgement by the decision-maker.
Clause 2.4 of the R Codes deals with judging the merit of proposals and provides the following:
Where a proposal does not meet deemed-tocomply provision(s) of the RCodes and addresses design principle(s), the decision-maker is required to exercise judgement to determine the proposal.
Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).
In regard to the exercise of judgment cl 2.5 of the R Codes provides the following:
2.5.1
Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes.
The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed-to-comply provision(s).
2.5.2
In making a determination on the suitability of a proposal, the decisionmaker shall exercise its judgement, having regard to the following:
(a)      any relevant purpose, objectives and provisions of the scheme;
(b)      any relevant objectives and provisions of the R-Codes;
(c)a provision of a local planning policy adopted by the decisionmaker consistent with and pursuant to the R-Codes; and
(d)      orderly and proper planning.
…
2.5.4
The decision-maker shall not refuse to grant approval to an application where the application satisfies the deemed-to-comply provisions of the RCodes and the relevant provisions of the scheme and any relevant local planning policy.
2.5.5
For the purpose of the R-Codes, a … local planning policy, will only be a relevant consideration in the exercise of judgement where it is:
(a)      specifically sanctioned by a provision of the R-Codes;
(b)      consistent with the design principles of the R-Codes; and
(c)      consistent with the objectives of the R-Codes.
Part 5 of the R Codes sets out the objectives as well as the design principles and deemedtocomply requirements for each design element for all single houses. Clause 5.1 deals with context and provides the following objectives:
(a)To ensure that residential development meets community expectations in regard to appearance, use and density.
(b)To ensure that designs respond to the key natural and built features of the area and respond to the local context in terms of bulk and scale, or in the case of precincts undergoing a transition, will respond to the desired future character as stated in the local planning framework.
(c)To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, privacy and overshadowing on adjoining properties.
(d)To ensure that open space (private and communal) is provided on site and:
•landscaped to establish streetscapes;
•provide a balanced setting and relationship to buildings; and
•provide privacy, direct sun and recreational opportunities.
(e)To ensure that development and design is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing a transition, development achieves the desired future character of the area identified in local planning framework.
Part 7 deals with the relationship between the R Codes and the local planning framework. Clause 7.1 says that a decisionmaker 'shall not amend or modify the RCodes, to provide for greater or lesser requirements unless it relates to matters expressly permitted under the RCodes to be amended or modified' and continues, that subject to cl 7.3, 'a local planning policy … that affects residential development shall be consistent with the provisions of the RCodes and may provide local objectives for housing design and development in so far as it guides the consideration of the decisionmaker to judge proposals'.
Clause 7.3.1(a) of the R Codes allows for local planning policies to amend or replace certain deemedtocomply provisions, which relevantly includes street setbacks. Clause 7.3.1(b) says that local planning policies may contain provisions that 'augment the RCodes by providing local housing objectives to guide judgements about the merits of proposals for any aspect of residential development that does not meet the requirements or is not provided for under the RCodes'.
The Tribunal interprets these provisions to mean that a local planning policy can amend and/or replace the deemedtocomply requirements for design elements such as street setbacks (cl 7.3.1(a) of the R Codes) and may provide local objectives for housing design and development that are consistent with the design principles for that particular design element. The decisionmaker, in this case the Tribunal, is also to have regard to any relevant purpose, objective and provision of the Scheme; any relevant objectives and provisions of the R Codes; and orderly and proper planning.
LPP 4.2 states that it provides a comprehensive basis for the control of residential development within the Daglish Precinct and where applicable to residential development:
(i)Identifies matters which will be considered when applying the design principles in certain design elements of the Codes; and
(ii)Replaces the deemed-to-comply requirements and/or provides additional deemed-to-comply requirements in relation to certain design elements of the Codes as summarised in table one below.
Table 1 of LPP 4.2 is a summary of subprecinct requirements identifying the R Codes' design element and the deemedtocomply requirements that are being replaced along with any additional deemedtocomply requirements. It also identifies additional matters for consideration in applying the design principles of these particular design elements.
Clause 6 of LPP 4.2 specifically addresses subprecinct 3 and says that in addition to the provisions of the Scheme, the R Codes and all relevant policies, development is to be in accordance with the standards outlined below:
6.1.2Deemed-to-Comply Requirements
5.1.2C2.1 to C2.2 of the Codes are replaced with the following:
C2.1The ground floor of buildings setback from the primary street:
…
C2.2The ground floors of buildings setback from the secondary street in accordance with Table 1 of the Codes.
In addition to the above and 5.1.2C2.3 and 5.1.2C2.4 of the Codes, the following will apply:
C2.5The upper floors of buildings are to be setback from the primary street ground floor facade as follows:
iWhere the predominant architectural dwelling style within the surrounding area is California Bungalows a minimum of 5.5m from the ridge line of the roof; or
ii.Where the predominant architectural dwelling style within the surrounding area is Post War Bungalows a minimum of 7.5m from the ridge line or the roof; or
iii.So as to be contained within the line of sight; or
iv.So as to be contained wholly within the roof space.
C2.6Where applicable, the upper floor of all development is not to exceed 15% of the site area.
C2.7Where applicable, the upper floor of all development is to be setback from the secondary street facade a minimum of 1.0m from the ground floor secondary street facade.
C2.8Where pitched roofs are the predominant roof form within the surrounding area, the roof pitch of new development as viewed from the street is to be pitched between 25 to 30 degrees[.]
In this case the respondent contends that the proposal does not satisfy the deemedtocomply requirements of the R Codes in respect of street setbacks as amended by cl 6.1.2 of LPP 4.2 (above).
The applicant submits that the proposal does satisfy the deemedtocomply requirements of the R Codes. Firstly, because LPP 4.2 does not address setbacks from rightofways and secondary streets, the applicant says the deemedtocomply provisions of the R Codes should be preferred over the provisions of LPP 4.2 which seek to establish upper floor setbacks from the main ridgeline of existing dwellings. The applicant's position is that in this case, the rightofway (not Richardson Terrace) is the primary street and argues that cl 6.1.2 of LPP 4.2 is silent in regard to setbacks from rightofways and therefore is inconsistent with the provisions of the R Codes and consequently the provisions of cl 5.1.2 C2.1 of the R Codes should prevail.
The Tribunal does not regard the issue of whether the rightofway is the primary street (or secondary street) to be of particular significance. The Tribunal does not agree with the applicant's contentions and finds that LPP 4.2 does not need to distinguish between rightofways or primary or secondary streets because it addresses the setbacks from the ridge line of the existing built form in order to respond to the context objectives as set out in cl 5.1(b) and cl 5.1(e) of the R Codes. This is entirely appropriate and the Tribunal considers the LPP 4.2 amendments to the deemedtocomply requirements to be consistent with the context objectives and the street setback design principles of the R Codes.
The applicant's second argument as to why the deemedtocomply provisions of the R Codes should be preferred over the LPP 4.2 provisions is that one of the objectives is to encourage the conservation and enhancement of heritage listed properties and the subject property is not heritage listed therefore the requirement to set back an upper floor 5.5 metres behind the ridge line of a building where the predominant architectural dwelling style in the surrounding area is California Bungalows should be set aside.
By highlighting one of the objectives of LPP 4.2 (cl 1.0(b)) it would seem that the applicant is contending that the setbacks in cl 6.1.2 of LPP 4.2 should only apply to heritage listed properties and therefore little weight should be given to the policy and the deemedtocomply provisions of the R Codes should be applied.
The Tribunal again does not agree with the applicant's contentions and notes that LPP 4.2 has seven policy objectives, one of which is to 'encourage renovation or development within subprecinct 3 to reflect the existing scale, character, details, materials and low density of the area'. The deemedtocomply provisions in cl 6.1.2 of LPP 4.2 are consistent with this objective and are not limited to heritage listed buildings.
The Tribunal considers the deemedtocomply requirements in cl 6.1.2 of LPP 4.2 to be consistent with the design principles of the R Codes and therefore appropriate to apply in this instance.
The Tribunal is satisfied that the proposal does not satisfy the deemedtocomply requirements of cl 5.1.2 of the R Codes, as amended by cl 6.1.2 C2.5 of LPP 4.2, because the predominant architectural style in the surrounding area is California Bungalow and the proposed upper floor is not to be set back a minimum of 5.5 metres from the ridge line of the existing roof; nor is the upper floor to be contained within the line of sight; nor is the upper floor to be contained wholly within the roof space. The proposal therefore needs to be assessed against the design principles of cl 5.1.2 of the R Codes which provide the following:
P2.1Buildings set back from street boundaries an appropriate distance to ensure they:
•    contribute to, and are consistent with, an established streetscape;
•    provide adequate privacy and open space for dwellings;
•    accommodate site planning requirements such as parking, landscape and utilities; and
•    allow safety clearances for easements for essential service corridors.
P2.2Buildings mass and form that:
•    uses design features to affect the size and scale of the building;
•    uses appropriate minor projections that do not detract from the character of the streetscape;
•    minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like; and
•    positively contributes to the prevailing development context and streetscape.
LPP 4.2 identifies matters which will be considered when applying the design principles in certain design elements of the R Codes and, in regard to street setbacks, identifies the following (cl 6.1.1 of LPP 4.2):
With respect to the application of P2.1 Council will have regard to the prevailing street setback for both the primary and secondary street (if any).
With respect to the application of P2.2, Council will have regard to the following matters:
Upper Level of a Building
a)the established neighbourhood character, particularly with respect to scale in terms of height and building bulk;
b)Whether the proposed development is consistent with the scale of development, in terms of height and building bulk, of the surrounding area; and
c)the visual impact of the upper floor as viewed from the street.
Roof Form and Pitch
d)The predominant roof form within the surrounding area;
e)The impact of the proposed roof form as viewed from the street on the established neighbourhood character;
f)Whether the proposed roof form as viewed from the street is consistent with the predominant roof form within the surrounding area; and
g)Where pitched roofs are the predominant roof form, the predominant roof pitch of the surrounding area.
…
The respondent contends that the proposal does not adequately address the matters identified in cl 6.1.1 of LPP 4.2 which it says the respondent is to have regard to when assessing proposals against the design principles of the R Codes. The applicant rejects this and says that the proposal complies with the deemedtocomply requirements of the R Codes and therefore further assessment against design principles 'is invalid'.
As stated earlier, the proposal does not satisfy the deemedtocomply requirements, as amended and replaced, and does need to be assessed against the design principles. The Tribunal is of the view that the matters set out in cl 6.1.1 of LPP 4.2, for consideration when applying the design principles, are consistent with P2.1 and P2.2 of the R Codes' provisions for street setbacks and are therefore relevant in the consideration of this development application.
It was Mr Stuart's opinion that the proposed upper floor addition will be complementary to the ground floor existing dwelling because of its use of similar materials, detailing and roof pitch and will have a minimal impact on the rightofway streetscape or Richardson Terrace streetscape.
Mr Miliken was of the view that the proposal will be a highly visible modern extension to a California Bungalow which will impact on the highly intact streetscape of Richardson Terrace because of the curvature of the street and the unusual lot configuration. He was concerned that the prominence of the upper floor would mean that the existing dwelling will no longer be read as a California Bungalow.
In this case, the Tribunal prefers the evidence of Mr Miliken and finds that the proposal will have an adverse impact on the relatively intact streetscape of Richardson Terrace. The proposed upper floor will alter the appearance of the existing dwelling so that it no longer retains its distinctive three dimensional form (of which the existing roof is an important element) and will be highly visible because of the location and orientation of the existing dwelling on the site, the unusual configuration of the site, combined with the curving and open nature of Richardson Terrace.
The Tribunal finds that the proposal does not satisfy the design principles of cl 5.1.2 (Street Setback) of the R Codes as it will not be consistent with or contribute positively to the established streetscape.

Issue 2 - Should the proposed development be approved having regard to the objectives of LPP 4.2?

The stated purpose of LPP 4.2 is to preserve and enhance the established neighbourhood character and residential amenity of the Daglish Precinct.
LPP 4.2 provides the following objectives:
a) To enhance the residential and pedestrian amenity of the Precinct;
b)To encourage the conservation and enhancement of properties, where properties are listed on the City of Subiaco Town Planning Scheme Register of Places of Cultural Heritage Significance and/or located within designated Conservation Areas;
c)To reinforce the current diversity of housing types in the Precinct;
d)To encourage residential development to be orientated to the street or other public areas;
e)To minimise the impact of carparking structures on the existing established character of the surrounding area;
f)To allow carparking structures within the front setback area in appropriate circumstances; and
g)To encourage renovation or development within sub-precinct 3 to reflect the existing scale, character, details, materials and low density of the area.
The respondent contends that the proposal does not respect or enhance the existing amenity and neighbourhood character, particularly in relation to bulk and scale and should not be approved. The respondent argues that 'the proposed development does not consider the heritage character of the dwelling, nor the impact the proposed development will have on the established neighbourhood character within the surrounding area and the potential impact this form of development may have on the wider Daglish area'.
The applicant once again contends that the proposal satisfies the deemedtocomply requirements of the R Codes 'therefore an examination of policy objectives are … invalid'. The applicant also says that 'in considering heritage-related elements, a degree of prejudice on behalf of the Respondent is evident, which the Applicant contends is heritage protection by stealth, outside the statutory planning framework, not orderly and proper planning, and therefore ultra vires'.
As stated earlier in these reasons, discussion of the identified issues inevitably leads to overlaps. In regard to issue 2, the Tribunal prefers the evidence of Mr Miliken and finds that the proposal does not satisfy the objectives of LPP 4.2 as the upper floor will not reflect the scale or character of the existing relatively intact streetscape which is comprised of predominantly single storey California Bungalows with open front setbacks. The Tribunal does not accept Mr Stuart's opinion that the impact of the upper floor will be minimal. Nor does the Tribunal accept Mr Stuart's view that the proposal is appropriate because the established neighbourhood character is mixed with some single and some two storey dwellings and some buildings with reduced setbacks in both the rightofway and Richardson Terrace. As discussed earlier, the existing two storey dwellings are at the far end of Richardson Terrace on the corner of Troy Terrace, and in Stubbs Terrace. The dwelling on the subject site is viewed as an integral part of the Richardson Terrace streetscape, particularly given the curved and open nature of the street, notwithstanding the location of its front door parallel to the rightofway. In relation to the socalled 'heritage issues', the street is considered to be a relatively intact street of dwellings constructed in a similar period (interwar) and in a similar architectural style (California Bungalow). This is the character that has been identified in the subprecinct and is the character that the policy objectives and provisions are seeking to retain. The Tribunal finds that the proposal is not successful in achieving the policy objectives of LPP 4.2.

Issue 3 - Should the proposed development be approved having regard to cl 42(1) and cl 42A of TPS 4?

As the proposed development has an overall height of 8.02 metres and a wall height of 6.8 metres it does not comply with cl 42(1)(a) or cl 42(1)(b). Clause 42A of TPS 4 therefore becomes relevant.
The applicant contends that the proposal 'is in keeping with the immediate surrounds, and the locality more broadly … and [is] therefore eligible for discretionary approval' under cl 42A. Whereas it is the respondent's contention that while cl 42A 'provides Council with the discretion to increase the wall height above 6m, … the variation of the upper floor setback and the proposed increase to the allowed maximum wall height would have an adverse impact on the adjoining residential properties and the general amenity of the locality by virtue of the immediate surrounding area being devoid of additional two storey structures constructed to the rear'.
Mr Stuart's evidence in relation to cl 42A was that the proposed development should be approved as 'the wall heights will not adversely impact the locality as the site is on sloping ground, abutting a [rightofway], and [is] similar to several two storey dwellings in the immediate vicinity'. It was Mr Stuart's opinion that the proposed wall heights meet the criteria in cl 42A and are capable of approval because of the following considerations:
A.The Site [is] on sloping ground, as is the property at No 22 Richardson Terrace.
B.The conventional method of levelling the Site would be via retaining walls at the rear, and filling to the height [of] the street boundary.
C.The wall heights are greatest at the lowest portion of the lot, being the southern corner, which abuts non-habitable setback areas on neighbouring properties.
D.The wall setbacks are compliant with the Acceptable Development standards of the R-Codes.
E.The proposed wall heights and setbacks are similar to numerous residential properties including:
a.A neighbouring property to the southeast of two storeys.
b.A property in the street at No 22 Richardson Terrace where the wall height has been taken from the existing floor level.
c.[Other] properties in the locality.
Mr Miliken was of the opinion that the proposal will have 'an undue adverse impact on the amenity of the surrounding area given the absence of two storey developments as a predominant building form' due to the height and scale proposed, which is inconsistent within the Richardson Terrace streetscape and the broader Daglish Precinct.
The Tribunal asked both Mr Stuart and Mr Miliken to describe the existing and likely future amenity of the locality.
Mr Stuart said that there were a lot of buildings with heritage character and of a distinct style but also a number of two storey buildings in the area including the building immediately behind the subject site and two others at the western end of Richardson Terrace. He said that these buildings were close to their secondary streets and appeared to have heights greater than normal requirements. Mr Stuart discussed the rightofways in the area and said that they had a distinct character compared to a normal street as there were a lot of structures on the boundaries or with small setbacks or solid fencing. Mr Stuart also discussed the pressure from the Western Australian state government to increase residential density near railway stations.
Mr Miliken described Richardson Terrace as a fairly intact streetscape with a collection of houses built during a similar time in a similar architectural style. He referred to the suburb as a garden suburb associated with the nearby railway station, and said that the majority of the houses are inter-war Californian Bungalows, with the vast majority of these being highly intact. It was Mr Miliken's view that a high level of amenity had been maintained with R15 sized lots and he did not see the density changing too much in the future even though located near the Daglish railway station and said the City was attempting to protect the heritage character of the area as much as possible.
In relation to cl 42A of TPS 4, the Tribunal prefers the evidence of Mr Miliken and finds that in this case the proposed 6.8 metre wall height will have an undue adverse effect on the amenity of the locality and is not compatible with the wall heights of surrounding residential developments which enhance the streetscape. As discussed earlier, the Tribunal agrees that Richardson Terrace is a relatively intact streetscape characterised by single storey California Bungalows on both sides of the street. The two houses with upper floors referred to by Mr Stuart are at the western end of Richardson Terrace and are both on the corner of Troy Terrace opposite multiple dwellings and neither is considered to enhance the Richardson Terrace streetscape. The other two storey house referred to is located behind the subject site on Stubbs Terrace and while it can be glimpsed from Richardson Terrace, it does not form part of the Richardson Terrace streetscape nor is it considered to enhance the streetscape of either street.
The Tribunal notes the unusual shape of the subject site and the location of the existing house on the site towards the western corner of the lot, with its front door facing the unnamed rightofway, but it is obvious from the evidence and was confirmed on the site view, that the existing California Bungalow on the subject site is read as part of the Richardson Terrace streetscape. This is because of the curvature of Richardson Terrace, the configuration and front fence setback of No 13 Richardson Terrace, the absence of a boundary fence to either the rightofway or Richardson Terrace, the high number of existing California Bungalows in the street and the open front setbacks of the other dwellings in the street.
The proposed upper floor is to be constructed in similar materials to the existing building (rendered walls with a pitched tiled roof) and will have some similar details such as a projecting corbel. The difficulty with extending a Californian Bungalow is that a major part of the architectural design is the three dimensional roof form which will be significantly altered by this proposal. Hence, the requirement to set the upper floor back 5.5 metres from the existing ridge line.
The Tribunal finds that the proposed upper floor addition with a wall height of 6.8 metres will be out of context and the increased bulk and scale will have an undue adverse effect on the amenity of the locality. The proposed wall height is not compatible with the wall heights of surrounding developments that are considered to enhance the streetscape of Richardson Terrace. As found earlier, the proposal does not meet the deemedtocomply requirements of the R Codes in relation to setbacks; nor is it necessitated by a sloping site as the slope is minimal; and the wall height is not a result of an irregular roof design.

Conclusion

In conclusion, the Tribunal has determined that the proposed upper floor addition to the existing dwelling on the subject site does not satisfy the deemedtocomply requirements of cl 5.1.2 (Street Setbacks) of the R Codes, as amended by cl 6.1.2 C2.5 of LPP 4.2. Nor does the proposal satisfy the design principles of cl 5.1.2 of the R Codes as it will not be consistent with or contribute positively to the established streetscape of Richardson Terrace.
In relation to the second issue, the Tribunal has determined that the proposal does not achieve the objectives of LPP 4.2 because the proposed upper floor will not reflect the scale or character of the existing relatively intact streetscape which is comprised of predominantly single storey California Bungalows with open front setbacks.
Finally, the Tribunal determined that the proposed upper floor addition with a wall height of 6.8 metres will be out of context and the increased bulk and scale will have an undue adverse effect on the amenity of the locality.
The Tribunal therefore finds that the application for review should be dismissed and the decision of the respondent to refuse the development application should be affirmed.

Orders

For these reasons the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the City of Subiaco made on 21 December 2015 to refuse development approval for a two storey addition to the existing dwelling at No 11 (Lot 149) Richardson Terrace, Daglish is affirmed.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER