STONE and TOWN OF VICTORIA PARK - [2010] WASAT 34

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: STONE and TOWN OF VICTORIA PARK [2010] WASAT 34

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 4 MARCH 2010

DELIVERED : 10 MARCH 2010

FILE NO/S: DR 484 of 2009

BETWEEN: LINDSAY JOHN STONE
Applicant
AND
TOWN OF VICTORIA PARK
Respondent

Catchwords:

Town planning - Development application - Alterations and additions to single storey house - Workers' cottage built in 1924 - Brick and corrugated iron building in 'Weatherboard Precinct' - Streetscape characterised by original single storey houses - Traditional residential character - Proposed full upper storey addition - Removal of original features - Impact of form of proposal on streetscape and character of area - Whether existing house 'retained' - Loss of original house from streetscape - Height, bulk and scale - Setback of double garage

Legislation:

Planning and Development Act 2004 (WA), s 252(1)
Town of Victoria Park Town Planning Scheme No 1, cl 3(1), cl 11, cl 11(2)
Residential Design Codes of Western Australia (2002), cl 2.6.1, cl 2.6.2

Result:

Development application refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr R Cruickshank (Representative)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Sipsas and City of Stirling [2009] WASAT 10

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application for substantial alterations and additions to an original workers' cottage on a corner site in Victoria Park. The Tribunal found that the streetscape in the locality is characterised by single storey original houses exhibiting traditional residential character and is remarkably consistent in terms of the scale and massing of existing houses. The proposed development included the removal of a number of the original external features of the existing house, a full upper storey over the whole of the footprint of the existing house, a front balcony above the verandah, a two level extension at the rear and a wide double garage with a setback of 1.75 metres from the secondary street.
The Tribunal determined that the proposed development is materially inconsistent with relevant town planning scheme provisions in relation to streetscape. The Tribunal found that the proposed development does not involve the 'retention' of the existing house, because it would be lost from the streetscape and because of the removal of its external features. Furthermore, the proposed height, bulk and scale of the additions is excessive and discordant in the context of the traditional residential character of the site and locality. The Tribunal also determined that the visual impact of the proposed garage is unacceptable in consequence of its limited setback, width and height.
The Tribunal concluded that the proposed development is inconsistent with orderly and proper planning and should be refused consent. Neither the demolition of the existing house nor its incorporation into a two storey form is consistent with the planning framework. Retention of the house, as contemplated by the planning scheme provisions, requires that it continue to present in three dimensional terms as a typical original single storey house retaining its original features. However, there is capacity to remove an asbestos addition at the rear of the original brick house and construct a sensitive two storey addition in this location and in the rear part of the site.
The application for review was dismissed and the decision of the Town of Victoria Park to refuse development approval was affirmed.

Introduction

In July 2002, Mr Lindsay Stone and his partner, Ms Gail Szalla, purchased No 212 Berwick Street, Victoria Park, located at the corner of Berwick Street and Rathay Street. No 212 Berwick Street contains an original single storey brick and corrugated iron workers' cottage addressing Berwick Street. As Ms Jutta Birmingham, the Senior Strategic Planner of the Town of Victoria Park (Town or Council), said in evidence:
The existing dwelling is a character dwelling of good quality and containing a number of typical architectural features, such as a tuckpointed façade, threepiece timber framed window in the front elevation, hipped roof with a skillion verandah across the entire frontage of the dwelling and a gablet above the verandah.
In January 2004, Mr Stone and Ms Szalla purchased the adjoining property at No 61 Rathay Street and amalgamated a portion of that property with No 212 Berwick Street to enable the survey strata subdivision of No 212 Berwick Street into two survey strata lots. Survey Strata Lot 1 is located at the corner of Berwick Street and Rathay Street, has an area of approximately 356 square metres, contains the original house and is known as No 212 Berwick Street (site). Survey Strata Lot 2 fronts Rathay Street, has an area of approximately 275 square metres and is known as No 61A Rathay Street. Mr Stone and Ms Szalla have constructed a two storey house at No 61A Rathay Street.
In this proceeding, Mr Stone has sought review by the Tribunal, in accordance with s 252(1) of the Planning and Development Act 2005 (WA), of the Council's decision to refuse his development application for substantial alterations and additions to the house on the site. The proposed development includes a full upper storey over the whole of the footprint of the existing house, a front balcony above the original verandah, a two level extension to the rear of the house and a double garage at the rear of the site accessed from Rathay Street. A number of the original external features of the existing house, including the three piece timber framed window in the front elevation, the hipped roof with skillion verandah across the frontage and a chimney, are proposed to be removed.

Site and locality

The site is zoned Residential with a residential density coding of R30 under the Town of Victoria Park Town Planning Scheme No 1 (TPS 1 or Scheme). The site is located in Precinct P12 East Victoria Park under cl 11 of the Scheme. The site is also located within the Town's Residential Character Study Area.
The Town of Victoria Park Residential Character Study Final Report (Report), which was prepared for the Town by Hocking Planning and Architecture in association with other consultants and published in September 2003, identified the site as an 'original place with existing original heritage fabric' and as being within an 'area of traditional residential character'. The 'key study findings' stated in the Report included the following:
•Study Area contains considerable surviving traditional residential character development.
•The existing traditional residential character is sustainable.
•Sustainability requires a change in focus from a redevelopment orientation to a retention/infill ethos. …
The Report found that 'the preponderance of single storey traditional character dwellings in the study area' requires 'the development of a local design culture for compatible two storey infill development'. The first priority identified in the Report for sustaining the traditional residential character of the study area was 'to encourage the retention of places of traditional residential character'.
The findings and recommendations of the Report were given effect by provisions of the Town's Local Planning Policy Streetscape (Streetscape Policy) which was adopted on 31 May 2005. Relevant provisions of the Streetscape Policy are discussed in the assessment of the proposed development below. The site is located within the 'Weatherboard Precinct' under the Streetscape Policy. While the existing house on the site is not of weatherboard construction, there are a significant number of weatherboard dwellings within the locality. Furthermore, whether comprising weatherboard or brick houses, as observed by Dr Linley Lutton, an architect and urban designer who gave evidence on behalf of the Town:
The streetscapes within the precinct are remarkable consistent in terms of the scale and massing of existing houses. Berwick Street provides a very good example of the consistent rhythm established by the existing houses.
Other than the house at No 61A Rathay Street, there are no full two storey houses in proximity to the site. The single storey traditional residential character identified in the Residential Character Study is plainly apparent in the locality.

Issues for determination

The following two principal issues arise for determination in this review:
1)Whether the form, height, bulk and scale of the proposed additions is acceptable in terms of streetscape, having regard to the contribution made by the existing building to the streetscape and character of the area.
2)Whether the visual impact of the proposed garage and associated boundary wall is acceptable.
I will address each of these issues in turn.

Form, height, bulk and scale of the proposed additions

Under cl 11(2) of TPS 1, each precinct in the Scheme area has a Precinct Plan. Clause 3(1) of TPS 1 states that the Scheme includes, in addition to the Scheme text, each of the Precinct Plans and each planning policy. The statement of intent in the Precinct Plan for Precinct 12 East Victoria Park includes the following:
The retention of existing structurally sound housing which generally contributes to the character of the area, and the selective redevelopment of other sites will be encouraged.
With respect to the Residential zone, the Precinct Plan states that:
The retention of existing housing, particularly whole streetblocks or streetscapes, will be encouraged and promoted. Redevelopment shall be consistent with existing style, character and scale of dwellings throughout the precinct.
Clause 3.2.9 of the Streetscape Policy is entitled 'Retention of dwelling'. This clause contains the following acceptable development provision:
A1Development that incorporates the retention of the existing dwelling and is sensitively designed to be sympathetic with the existing built form and streetscape, particularly in terms of materials, colours, scale, form and roof pitch.
The corresponding performance criteria in cl 3.2.9 of the Streetscape Policy includes the following:
P1To ensure the integrity of the built form is protected through the retention of buildings of good quality, architectural character and particularly those:
…
•original places identified in the Town of Victoria Park Residential Character Study;
•located in Weatherboard Precincts … ; and
•dwellings constructed in or prior to 1945.
The proposed development is plainly inconsistent with each of these provisions of the Precinct Plan and the Streetscape Policy. While Mr Stone has identified some cracking of brickwork, corrosion of lintels, fretting of limestone elements, corrosion of roof sheets, as well as the need for other repairs, as Ms Birmingham said in evidence, 'there is no evidence that the building is structurally unsound'. Similarly, Dr Lutton gave evidence that, while the existing house is rundown, 'it is not beyond repair'. As Ms Birmingham also said:
The existing dwelling is considered to have a high standard of architecture, typical of its era, which adds significantly to the existing streetscape by establishing a link to similar housing particularly on Berwick Street but also on Rathay Street.
The proposed development does not involve the 'retention' of the existing house, because, as Ms Birmingham explained, 'not much of the original dwelling is proposed to remain and as a result the original dwelling will be lost from the streetscape'. Dr Lutton gave the following evidence which the Tribunal accepts:
The existing dwelling fits well with its Berwick Street neighbours and is part of the existing consistent rhythm of houses along Berwick Street.
The proposal in this case is to build a second storey over the existing dwelling in such a way that the existing building form will be completely lost. The plan is to simply extrude the existing building vertically and cap it with a new roof.
The proposal shows no attempt to maintain any of the interesting features of the existing dwelling. It is the collection of these interesting features that gives a neighbourhood its character.
Furthermore, the proposed height, bulk and scale of the additions is excessive and discordant in the context of the traditional residential character of the site and locality. The proposed development is not 'consistent with existing style, character and scale of dwellings' (Precinct Plan), is not 'sensitively designed to be sympathetic with the existing built form and streetscape, particularly in terms of … scale, form and roof pitch' (cl 3.2.9 A1 of the Streetscape Policy) or such as 'to ensure the integrity of the built form is protected' (cl 3.2.9 P1 of the Streetscape Policy). As Ms Birmingham said:
The proposed location of the upper storey, in my opinion, would interrupt the rhythm of the street which has a consistent pattern of single storey dwellings within immediate proximity of the site.
Similarly, as Dr Lutton explained:
The overall scale and bulk of the proposal is at complete odds with the existing character of the precinct and its streetscapes. This is clearly demonstrated when a streetscape is drawn along either Berwick Street or Rathay Street. …
The overbearing bulk of the building is made more so through the use of relatively large gables.
The use of small punched windows produces a solidtovoid ratio which reinforces the appearance of the 'box like' two storey section above the existing dwelling.
The proposed development is also inconsistent with cl 3.2.11 of the Streetscape Policy which relates to building design in the Weatherboard Precinct. This clause contains the following acceptable development provision:
A3.2Developments in Weatherboard Precincts and Weatherboard Streetscapes
Development within the Streetscape Zone of a Weatherboard Precinct or Streetscape shall be consistent with the street and side setback, building heights and roof shapes and pitches general to the weatherboard houses within [the] Precinct or Streetscape and shall incorporate the following design guidelines:
(a)Form, Mass and Proportion
(i)Roof shapes, heights, pitches and material matching with housing predominating in the street …
The 'Streetscape Zone' is 'that part of a property, generally about the first 12 metres of its depth, in which development affects the streetscape' (Definitions, at 62). As Ms Birmingham explained, because the site is located at the intersection of two streets, the 'Streetscape Zone' includes essentially the whole of the site.
The corresponding performance criteria in cl 3.2.11 of the Streetscape Policy includes the following:
P3Design of new development in the Residential Character Study Area, Weatherboard Precincts, Weatherboard Streetscapes to be consistent with the following criteria:
…
•ensures that any development of [nonweatherboard] properties within a weatherboard precinct or streetscape is designed in sympathy with the precinct or streetscape, both to enhance the streetscape and to protect investment in existing weatherboard houses;
…
The proposed development is inconsistent with the 'building heights and roof shapes and pitches general to the weatherboard houses within [the] Precinct', does not incorporate 'roof shapes, heights, pitches and material matching with housing predominating in the street' and is not designed 'in sympathy with [the] precinct … to enhance the streetscape and to protect investment in existing weatherboard houses', because it removes the characteristic roof form of the house and incorporates an entirely uncharacteristic two storey building form, as well as removing other original features.
Mr Stone argued that the proposed development is acceptable in terms of streetscape for essentially four reasons. First, Mr Stone referred to approved alterations and additions made to the house on the adjoining property at No 210 Berwick Street. The alterations and additions at No 210 Berwick Street, which were approved by the Council in January 2006, following the completion of the Residential Character Study and the adoption of the Streetscape Policy, included the removal of the original front hipped and gabled roof and verandah and the incorporation of a different verandah and a portico. Mr Stone suggested that, in consequence of the alterations and additions, the house at No 210 Berwick Street is 'no longer intact'. However, as the Tribunal observed in Sipsas and City of Stirling [2009] WASAT 10 at [51]:
… The Tribunal considers that it is appropriate in heritage matters for the term 'intact' to be qualified to reflect the degree of intactness. The qualification allows for some flexibility and for changes over time. By their very nature, buildings and localities change and develop over time. In planning generally, and in heritage planning in particular, there are very few absolutes. Very few areas or places of cultural heritage significance are completely intact.
As Ms Birmingham acknowledged, the Town's approval of the alterations and additions at No 210 Berwick Street was most unfortunate. Arguably, the alterations should not have been approved, having regard to the Streetscape Policy. However, as Ms Birmingham also said, the alterations at No 210 Berwick Street do not detract substantially from the intactness of the streetscape. The streetscape of the area remains largely or substantially intact. Moreover, notwithstanding the unfortunate alterations to the front part of No 210 Berwick Street, the building remains recognisable as an original single storey house. In contrast, if the proposed alterations and additions in this case were carried out, the house on the site would not be recognisable as an original single storey house.
Secondly, Mr Stone referred the Tribunal to the streetscape on the opposite side of Berwick Street from the site and emphasised that that streetscape includes a substantial church building, a large fence along the secondary street frontage of a property and an unsympathetic addition to an original house which, while located towards the rear of the original structure, appears 'boxlike'. The principal streetscape of which the house on the site forms part is along the same side of Berwick Street as the site. However, taking into account all elements on both sides of Berwick Street, the proposed development is inconsistent with the provisions of the Precinct Plan and the Streetscape Policy referred to earlier. As found earlier, the streetscapes within the precinct are remarkably consistent in terms of the scale and massing of existing houses. Both sides of Berwick Street are characterised by single storey original houses. The church building, while uncharacteristic, is also single storey. The 'boxlike' addition at a property across the road from the site is anomalous. Berwick Street provides a very good example of the consistent rhythm established by the existing houses on both sides of the street. The proposed development is entirely inconsistent with the traditional residential character manifested on both sides of Berwick Street.
Thirdly, Mr Stone expressed the concern that the alternative form of development of the site to the proposal would involve an unattractive 'boxlike' addition at the rear, similar to the addition on the opposite side of Berwick Street. However, as Dr Lutton said, good design can avoid an unattractive 'boxlike' appearance. It is expected that the Council, consistently with the Streetscape Policy, will in the future strive to ensure that only developments exhibiting good and sympathetic design will be approved in areas of traditional residential character.

Finally, Mr Stone emphasised the role and potential of street trees, particularly existing trees in Rathay Street, to screen the proposed development. However, despite street trees, the proposal would be clearly apparent in the streetscape of both Berwick Street and Rathay Street.
The proposal is materially inconsistent with relevant Scheme provisions in relation to streetscape. It follows that the form, height, bulk and scale of the proposed additions is not acceptable in terms of streetscape.

Visual impact of the proposed garage

The proposed double garage has a width of 6.8 metres and a setback of 1.75 metres from Rathay Street. Clause 3.2.3 of the Streetscape Policy concerns setback of garages. As the Town correctly submitted, the acceptable development provision in cl 3.2.3 A3.1 of the Streetscape Policy contemplates that, in contrast to other areas, any garages in the Weatherboard Precinct should not be located at the street frontage, but rather, behind the building. The corresponding performance criteria states as follows:
P1The setting back of carports and garages so as not to detract from the streetscape or appearance of the dwellings, or obstruct views of dwellings from the street and vice versa.
The proposed garage does not satisfy the acceptable development provision in cl 3.2.3 of the Streetscape Policy, as it is located at the street frontage. The proposed garage is also inconsistent with the performance criteria in cl 3.2.3 of the Streetscape Policy, because its limited setback contributes to a detraction from the streetscape of Rathay Street. Significantly, the proposed double garage is wider than a typical two car garage, is set 1.25 metres forward of the double garage on the adjoining property at No 61A Rathay Street, and is, largely, not incorporated within the proposed house. The Tribunal accepts the following evidence given by Ms Birmingham:
In my view the reduced front setback of the garage, the excessive width of the garage and the height of the proposed boundary wall to the garage, in combination result in a garage having a dominant visual impact on the street.
Similarly, the Tribunal accepts the following evidence given by Dr Lutton:
I am of the opinion that the siting of the garage forward of the dwelling's façade, and forward of the adjoining garage, when combined with the proposed garage width and height, result in the garage forming [a] dominant element in the street.
Mr Stone argued that the visual impact of the proposed garage is acceptable essentially for the following reasons:
•The … setback is in keeping with the previous garage on the allotment.
•The … setback is consistent with the existing traditional and new dwellings in the precinct (see attached photographs Attachment 3).
•A … setback is consistent with the [Residential Design Codes of Western Australia (2008) (Codes)].
However, the previous garage at No 212 Berwick Street was a single garage (not a wide double garage) and had a setback of 3.0 metres (not 1.75 metres) from Rathay Street. The proposed garage would have an excessive visual impact when viewed in the context of the streetscape of Rathay Street, including the streetscape contributed to by the building constructed by Mr Stone and Ms Szalla at No 61A Rathay Street, which has a garage set back 3.0 metres from Rathay Street and substantially incorporated within the building. Finally, the Streetscape Policy was adopted by the Town in accordance with cl 2.6.1 and cl 2.6.2 of the Residential Design Codes of Western Australia (2002) (2002 Codes) in substitution for the provisions of Element 2 Streetscape in the 2002 Codes. The 1.75 metre setback of the double garage is inconsistent with the substituted streetscape provisions in the Streetscape Policy.
It follows that the visual impact of the proposed garage is unacceptable.

Conclusion

Mr Stone explained that he and Ms Szalla wish to both live in the Victoria Park area and to enjoy a modern standard of accommodation. He also explained that they would like to obtain the benefit of city views, which effectively requires the construction of an upper level balcony at or close to the frontage of the existing house.
While a landowner's desire to maximise residential amenity is certainly a relevant consideration in the exercise of planning discretion, the amenity expectations expressed by Mr Stone are unreasonable in the context of the applicable planning framework. The proposed alterations and additions would result in a house with a floor area of approximately 360 square metres. As Dr Lutton said, a house with a floor area of 360 square metres would be regarded as a 'large house' and certainly 'larger than the average family home'. The Precinct Plan and the Streetscape Policy, which are both provisions of TPS 1, contemplate the retention of the existing house on the site. Retention requires that the existing house continue to present in three dimensional terms as a typical original single storey house retaining its original features. Neither the demolition of the existing house nor its incorporation into a two storey form is consistent with the planning framework.
A house of the size and character proposed by Mr Stone cannot reasonably be accommodated on the site, having regard to the applicable planning framework. Rather, as Dr Lutton explained, there is capacity to remove an asbestos addition to the rear of the original brick house and construct a sensitive two storey addition in this location and in the rear part of the site. The available footprint for such an addition is approximately 60 square metres. The construction of a two storey addition in this location would result in a house with a floor area of approximately 180 square metres, including a garage. The addition, including the garage, should have a minimum setback of 3.0 metres from Rathay Street.
The proposed development is materially inconsistent with relevant Scheme provisions in relation to streetscape, and is not acceptable in terms of streetscape. The visual impact of the proposed garage is also unacceptable. The proposed development is therefore contrary to orderly and proper planning.
It follows that the application for review should be dismissed and the decision of the Town to refuse development approval for alterations and additions at the site should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision made by the Town of Victoria Park on 24 November 2009 to refuse development approval for alterations and additions at No 212 (Lot 36, Strata Lot 1) Berwick Street, Victoria Park is affirmed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER