SUCKLING and CITY OF WANNEROO - [2011] WASAT 135

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SUCKLING and CITY OF WANNEROO [2011] WASAT 135

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 30 JUNE 2011

DELIVERED : 24 AUGUST 2011

FILE NO/S: DR 59 of 2011

BETWEEN: ROLAND ARTHUR SUCKLING
PETA LYNNE SUCKLING
Applicants
AND
CITY OF WANNEROO
Respondent

Catchwords:

Town planning - Development application Refusal Proposed three storey dwelling Roof pitch Difference between roofing materials and roof form - Minimum roof pitch of 25 degrees Bulk - Agreed structure plan Detailed area plan Residential Design Codes of Western Australia (2008) Clause 6.2.2 of the Residential Design Codes Streetscape - Front setback - Intrusions into front setback Louvres Screens Amenity Views - Orderly and proper planning Ad hoc decisionmaking - Whether the proposed roof pitch complies with the planning framework - Whether the proposed front setback complies with the planning framework - Whether approval of the proposal would be in the interests of orderly and proper planning

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 4.4.3, cl 4.4.6, cl 6.8, cl 9.8.3, cl 9.8.3(b), cl 9.14.5, cl 9.14.5(b), cl 9.14.5(c), Pt 4, Pt 9
Metropolitan Region Scheme
Planning and Development Act 2004 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2.1, cl 6.2.2, cl 6.2.2 A2, cl 6.2.2 P2, Pt 6

Result:

The decision for review is dismissed
The decision of the Council to refuse development approval is affirmed

Category: B

Representation:

Counsel:

Applicants: Mr W Sankey (Acting as Agent)
Respondent: Mr P Bracone (Acting as Agent)

Solicitors:

Applicants: WS Architects
Respondent: City of Wanneroo

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

Lloyd and Shire of Busselton [2011] WASAT 129

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application for a new three storey dwelling at No 18 (Lot 302) Swansea Promenade, Mindarie.
The issues were:
1)Whether the proposed roof pitch complied with the planning framework.
2)Whether the proposed front setback complied with the planning framework.
3)Whether approval of the proposal would be in the interests of orderly and proper planning.
On the first issue, the Tribunal found that the relevant planning requirements were described in the Agreed Structure Plan 13 Mindarie Keys Harbourside Village. The evidence available to the Tribunal indicated the respondent had consistently applied the provisions of the Agreed Structure Plan which required that where the main roof was visible from the street, the 'roof pitch shall be a minimum of 25 degrees'. The respondent had shown reasonable flexibility by permitting minor roof elements to be flat and, in one case, flexibility possibly not anticipated by the Agreed Structure Plan, by permitting a curved roof on a nearby property. The Tribunal found that the roof, when viewed from the street, was required to be pitched at 25 degrees and that the requirement was a general requirement dealing with the entire roof structure and form, and not limited to roofing materials. The proposal provided a roof with a 2 3 degree pitch behind a parapet wall. The Tribunal determined that the roof, when viewed from the street, presented as a flat roof.
Even if the applicants had been successful in arguing that the roof was not visible from the street and did not require a minimum roof pitch of 25 degrees, the proposal still failed because of excessive bulk. Therefore, the Tribunal found that the proposed roof pitch did not comply with the planning framework.
The second issue, which dealt with whether the proposed front setback complied with the planning framework, was surprisingly complex. It was agreed by the parties and accepted by the Tribunal that, apart from the screens and louvres which projected into the front setback area, all other building elements complied with the front setback requirements. The Tribunal found that the relevant Agreed Structure Plan and detailed area plan did not deal with the matter of intrusions and that they needed to be assessed under the provisions of the Residential Design Codes of Western Australia (2008). The Tribunal then found that the screen to the alfresco area and the screen near the end of the first floor balcony were properly treated as walls because they provided some enclosure to the balcony and alfresco (veranda) areas. Those elements could not be classified as minor intrusions and therefore breached the minimum setback requirements. On the other hand, the screen at the second level and the louvres at both levels were correctly classified as minor intrusions. Finally, the Tribunal found that, although there was less risk at the second floor level than the first floor level, there was a reasonable chance that the minor intrusions would have an adverse impact on amenity with particular reference to views. Therefore, the Tribunal found that the proposed front setback did not comply with the planning framework.
On the third issue, the Tribunal found that the question of orderly and proper planning only arose in relationship to the question of roof pitch. The Tribunal found that the proposed roof was clearly inconsistent with roof pitch requirements and that approval of the proposal would be an ad hoc decision and therefore inconsistent with orderly and proper planning.
Although the Tribunal determined that the applicants were unsuccessful on all three issues, the most significant failure was the roof pitch because it was fundamental to the design proposal. The front setback issue was capable of approval with relatively minor design and detailing revisions, together with additional information relating to whether there was an adverse impact on views. The issue of orderly and proper planning only arose because the proposed roof was clearly inconsistent with roof pitch requirements.
It followed that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.

Introduction

These proceedings involve an application brought by Mr Roland Suckling and Ms Peta Suckling (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Wanneroo (respondent, City or Council) made on 9 February 2011 to refuse development approval for a new three storey dwelling (development) at No 18 (Lot 302) Swansea Promenade, Mindarie (site).

Site and locality

The site has a trapezoidal shape approximating a rectangle with a wider front dimension than a rear dimension. The site has a street frontage of 14.688 metres, side lengths of 26.858 metres and 26.692 metres, a rear boundary of approximately 11 metres and an area of 341 square metres.
The site has an orientation approaching northsouth with the site facing Swansea Promenade at the south. There is no vehicle access to the site from Swansea Promenade. Vehicle access is from the rear where the site has a frontage of almost 11 metres to Penryn Lane.
It appears that the site levels have resulted from retaining walls constructed at subdivision stage. The finished site level is approximately 3 metres above Swansea Promenade with access provided by steps behind the front retaining wall. The site is then flat until it approaches the rear boundary Penryn Lane where there is a varying gradient to facilitate a fall of approximately 1 metre across the rear boundary.
The parties did not accept an invitation from the Tribunal for a viewing of the site. Hence, the Tribunal has relied on evidence, including photographs, submitted by the parties to develop an understanding of the site and its relationship to the locality. It appears that the site has ocean views down Swansea Promenade and is a short walk from the marina, harbourside village and the existing hotel.
The photographs indicate that both adjoining side neighbours have existing dwellings on their sites.

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme (MRS). The site is zoned Marina under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme) and falls within an area covered by Agreed Structure Plan 13 - Mindarie Keys Harbourside Village (Structure Plan or ASP 13).
The Structure Plan refers to two districts of development within the Marina zone: District 1 which is an existing residential area to the north and District 2 which contains the review site. District 2 contains three precincts:
•Precinct A: Harbourside Commercial precinct;
•Precinct B: Mixed Use precinct; and
•Precinct C: Residential precinct, which is further divided into three subprecincts with the review site being in subprecinct 1.
Hence, the review site is within Precinct 2C.1 of ASP 13 and has a residential density coding of R40.
The subprecincts are subject to varying development standards which are described in detailed area plans. The review site is subject to the provisions of Detailed Area Plan No 1 (DAP 1).
The relationships between ASP 13 and DAP 1 are described in cl 3.2 of the Structure Plan which sets out the provisions for District 2 where, at 3.2.1, it states:
The provisions are divided into objectives, which describe in general terms the intentions to be addressed in each precinct; and criteria, which set out built form requirements ('shall') and preferred treatments ('should'). These are augmented by Detailed Area Plans (DAPS), which detail specific planning, design and constructional requirements for development within each Precinct or part of a Precinct.
Relevant provisions of ASP 13 are described later in these reasons.
There are two sections of the Scheme which are directly relevant to this application for review: Pt 4 which includes development standards for residential development, and Pt 9 which deals with structure plans and detailed area plans.
Clause 4.4.3 of DPS 2 provides that:
[u]nless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.
However, cl 4.4.6 of DPS 2 provides that:
[a]n Agreed Structure Plan may vary the requirements of the Residential Design Codes.
Relevant provisions of the Residential Design Codes of Western Australia (2008) (R Codes) are described later in these reasons.
ASP 13 has been adopted in accordance with the provisions of Pt 9 of the Scheme. The relationship between the Scheme, the Structure Plan and the R Codes is clarified in cl 9.8.3 of DPS 2 where it states that:
Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:
(a)in the areas designated as zones, the permissibility of uses shall be the same as set out in Table 1 as if those areas were zones under the Scheme, having the same designation;
(b)the standards and requirements applicable to zones and R Codings under the Scheme shall apply to the same extent to the areas having corresponding designations under the Agreed Structure Plan[,] however[,] notwithstanding the provisions of paragraph (f), an Agreed Structure Plan may by a clear statement of intent to do so, make provision for any standard or requirement applicable to zones or R Codings to be varied, and the standard or requirement varied in that way shall apply within the area of the Agreed Structure Plan, or any stipulated part of that area, as if it was a variation incorporated in this Scheme;
…
(f)any other provision, standard or requirement in the Structure Plan shall be given the same force and effect as if it was a provision standard or requirement of this Scheme, but subject to the provision of subclause 9.8.3(b) allowing for a specific variation to a Scheme standard or requirement by a Structure Plan, if there is any other inconsistency or conflict not addressed as an intended variation by the Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail[.]
Similarly, DAP 1 for SP 13 has been adopted under the provisions of Pt 9 of DPS 2. The relationship between DAP 1, the Scheme and the R Codes is clarified in cl 9.14.5: Operation of an Agreed Detailed Area Plan where, at 9.14.5(b) and 9.14.5(c) of DPS 2, it states that:
(b)Once the Detailed Area Plan has been agreed it should be used, with respect to the land subject to the Agreed Detailed Area Plan, as the basis for:
…
(iii)determining applications for planning approval.
(c)Without limiting the generality of the Clause 9.8.2, under [a] Detailed Area Plan:
(i)the standards and requirements applicable to zones and R Codes under the Agreed Structure Plan shall apply to the same extent to the areas having corresponding designations under the Agreed Detailed Area Plan; however[,] notwithstanding the provisions of subparagraph (iii), an Agreed Detailed Area Plan may[,] by a clear statement of intent to do so, make provision for the design standards and requirements applicable to R Codes and zones to be varied, and the design standard or requirement varied in that way shall apply within the area of the Agreed Detailed Area Plan, or any stipulated part of that area of the Agreed Detailed Area Plan, as if it was a variation incorporated in the relevant Agreed Structure Plan;
(ii)provisions duplicating or substantially to the same effect as any provisions of the Scheme shall have the same force and effect in regard to the land in the Detailed Area Plan as if they were provisions of the Scheme;
(iii)any other provision, standard or requirement in relation to the R Codes and zones in the Agreed Detailed Area Plan shall be given the same force and effect as if it was a provision, standard or requirement of the relevant Agreed Structure Plan, but subject to the provision of subclause 9.14.5(c)(i) allowing for a specific variation to the design standards and requirements by a Detailed Area Plan, if there is any other inconsistency or conflict not addressed as an intended variation by the Agreed Detailed Area Plan, the provision, requirement or standard of the relevant Agreed Structure Plan shall prevail.

Proposed development

The proposed development is a three storey dwelling. The ground floor comprises two bedrooms, a lounge area, the entry, a garage for three cars, an alfresco area and a swimming pool. The first floor provides a bedroom, a study, the kitchen and various living areas. There is also a louvred screen set in front of a small front balcony. The top floor comprises a void and master bedroom suite over the front half of the dwelling with a continuation of the louvred screen.
The roof to the dwelling is clad with metal, mostly at two degrees and mostly behind a small parapet or fascia that screens the roof materials from being visible from the street.
It is the Tribunal's opinion that the appearance of the dwelling is consistent with expectations for a well designed building by a skilled architect.

Council's decision

The Council advertised the development application and received one submission objecting to the roof pitch and also objecting to the louvred screen which projects into the front setback area.
The Council refused the application for the following two reasons:
1)The design of the main roof would be contrary to Clause 3.4.2.1 (viii) of Agreed Structure Plan No. 13, which prescribes a minimum main roof pitch of 25 degrees.
2)Structures within 3 metres of the primary street frontage would be contrary to the building envelope prescribed under Detailed Area Plan No. 1 (Mindarie Keys Harbourside Village) and the setbacks stipulated under Table 1 of Agreed Structure Plan No. 13.

The issues

The parties submitted two issues, with one issue relating to orderly and proper planning and the other issue relating to whether the design of the proposed dwelling complied with the Structure Plan and the DAP 1. Both parties based their arguments around two aspects of the design: the roof pitch and the front setback. For convenience, the Tribunal will treat these as two separate issues. The Tribunal agrees with the parties that the questions of compliance with ASP 13 and DAP 1 are central to this review but will extend the issues to deal with the broader planning framework.
Therefore, the following three issues arise for determination in this review:
1)Whether the proposed roof pitch complies with the planning framework.
2)Whether the proposed front setback complies with the planning framework.
3)Whether approval of the proposal would be in the interests of orderly and proper planning.
The Tribunal will address each issue in turn.

Whether the proposed roof pitch complies with the planning framework

The parties agreed that the relevant planning framework applying to the proposal is ASP 13 and that DAP 1 is silent on the issue of roofs. However, there is a fundamental difference between the parties as to the applicable clause of ASP 13, with the respondent relying on cl 3.4.2.1(viii) of ASP 13 and the applicants arguing for cl 3.4.2.2(viii) of ASP 13.

Summary of the applicants' argument

Mr Wayne Sankey, a registered architect and designer of the project, submitted evidence and arguments on behalf of the applicants.
Mr Sankey expressed frustration with the assessment process, stating that on 14 October 2010 he submitted a full set of drawings with the message: 'Do we need to comply with the R Codes setbacks on a nil setback side or a solar setback side?' On 18 October 2010, he received a reply stating: 'I've had a very quick look at the plans and nothing is ringing any alarm bells ...'. Mr Sankey complained that the roof design is fundamental to the proposal and is not a subtle detail that could be missed in a preliminary assessment by Council staff.
Leaving the process aside and referring to the issue of the roof, central to Mr Sankey's argument is that the applicable clause relating to roof design is cl 3.4.2.2(viii) of ASP 13.
Section 3.4 of ASP 13 describes the provisions for the Residential Precinct 2C. Clause 3.4.2 of ASP 13 states that 'Development Criteria to be satisfied in the Residential Precinct have been divided into Single Residential Criteria and Medium High Density Development Criteria[.]' The development criteria are then described in two subclauses of ASP 13:
•Clause 3.4.2.1 Single Residential Development Criteria (R30/R40), (i) (x); and
•Clause 3.4.2.2 Medium High Density Development Criteria (R40 R160) (i) (ix).
Mr Sankey argued that, because the site is zoned R40 and the R Codes define R40 as medium density, the applicable clause is cl 3.4.2.2. In addition, he observed that this is confirmed by the size of the lot.
In a rather complicated argument, Mr Sankey provided additional grounds for applying cl 3.4.2.2 of ASP 13 to the proposal rather than cl 3.4.2.1:
There is also reference in the text to dual coding R 30/60 zoning in clause 3.4.2.2(iii) which is noted on the Structural [sic] Plan as R30/60, this is not consistent with the single coding R 40 for lot 302 being read in the text as R 30/40. This leads to using section 3.4.2.2 Medium to High Density (R40-R100) guidelines and clause 3.4.2.2(viii) being considered as the relevant clause.
Further reasons for assessing the proposal under the medium to high density criteria were presented in the applicants' statements that:
… Lot 302 is coded R 40, not R30/40 dual coding … [and] Lot 302 is clearly designated R40 with the same broken line as the adjacent R 100 coded area, as reflected in the designated R40R100 in the text of ASP13.
The significance of Mr Sankey's argument is apparent when comparing the requirements of the two clauses.

Clause 3.4.2.1(viii) of ASP 13 requires:
Where the main roof is visible from the street (not including the rear laneway and public open space), roof pitch shall be a minimum of 25 degrees. Lower pitches are permitted for verandas and awnings. Use of the roof space is encouraged.
However, the requirements of cl 3.4.2.2(viii) of ASP 13 are more flexible and less prescriptive:
Generally, the roof is to be pitched where visible, at a minimum of 25 degrees. Lower pitches are permitted to awnings and veranda roofs. The provision of a parapet or low skillion roof may be considered where integral to the architectural design.
Mr Sankey argued that the parapet is integral to the architectural design and therefore complies with the requirements of cl 3.4.2.2(viii) of ASP 13.
In addition, Mr Sankey argued that, even if cl 3.4.2.1(viii) of ASP 13 is the applicable clause, it only applies when roofs are visible from the street. The proposal does not have any part of the roof visible to the street and therefore does not need to be pitched at a minimum pitch of 25 degrees.
In addition, Mr Sankey referred to many examples of other dwellings with flat roofs behind parapet walls. During the hearing, he accepted that most of these were in District 1 and subject to different requirements. Nevertheless, there remained roofs with parapet components visible from the street and a dwelling at No 12 Swansea Promenade with a combination of flat roofs behind a parapet and a curved roof with the top of the curve being almost flat.
Finally, Mr Sankey presented arguments based on streetscape and quality of design. He observed that Swansea Promenade is different from most of the streets in Precinct 2C1. It is a broad promenade with a wide landscape strip down the middle of the street and a significantly different scale to the typical street. Mr Sankey noted that, although the precinct is described as 'Harbourside Village', the scale of Swansea Promenade is not a village scale street. In addition, the site is only 120 metres from the Marina Commercial zone, with both factors indicating that a village scale pitched roof is not the only appropriate roof form for the site or for Swansea Promenade. Furthermore, he observed that the streetscape contains a wide variety of roof designs with flat roofs, turrets, skillions, pitched roofs and a curved roof. Mr Sankey concluded that, in the context of a multitude of styles and forms, the proposal may have a different roof aesthetic; however, it would, as a minimum, blend in with the streetscape and, due to the quality of design, the proposal would enhance the streetscape.

Summary of the respondent's argument

Mr Benjamin Hesketh, a qualified planner employed by the respondent, provided evidence for the City.
In terms of the process, Mr Hesketh noted that the applicants' questions were specifically about setbacks and the response, qualified as a 'very quick look', dealt with setbacks.
Mr Hesketh argued that there should be no confusion as to the applicable clause. All the land covered by DAP 1 is land in Precinct 2C.1 of ASP 13 and is either zoned R30 or R40. Two small adjoining areas shown as R100 are in Precinct 2B and covered by DAP 7. Section 3.4.2.1 of ASP 13 describes development criteria for single residential development for lots in either the R30 or R40 zones. He argued that there is no dual coding R30/40 in ASP 13 and that, because the review site is a single residential lot in a R40 zone, the correct criteria must be those described in cl 3.4.2.1 of ASP 13.
Mr Hesketh explained that the design criteria prescribed by ASP 13 are '… based on key requirements of the developer's restrictive covenants (and the design guidelines which form part of these covenants), which every lot within the structure plan area is subject to as a contract of sale'.
The respondent argued that:
As development on lot 302 is subject to the provisions of Clause 3.4.2.1 of ASP13, a minimum main roof pitch of 25 degrees is required as per subclause (viii). The proposed roof is effectively flat, having a pitch of only 2 degrees, and therefore does not satisfy this requirement. The proposal was refused partly on this basis.
The argument that the main roof of the proposal complies with Clause 3.4.2.1(viii) of ASP13, because it is hidden behind a parapet and therefore not visible from the street, is a misinterpretation of the intent of this clause.
Mr Hesketh noted that the respondent's interpretation was consistent with the interpretation of the Wharf Design Committee who act on behalf of the developer to ensure compliance with the restrictive covenants. In his witness statement, Mr Hesketh reported that on 14 December 2010 '[t]he Wharf Design Committee cited several areas of noncompliance with the restrictive covenants, including roof pitch and setback incursions, and requested the design be amended accordingly'.
In response to a question from the Tribunal, Mr Hesketh stated that the Wharf Design Committee is part of a separate process. There are some minor variations between the design guidelines associated with the restrictive covenants and the requirements of ASP 13; for example, the covenants require a roof pitch of 27 degrees. He stated that the City accepts 25 degree roof pitches and the applicants needed independent approval from the Wharf Design Committee.
Finally, Mr Hesketh argued that the respondent has consistently applied ASP 13 and that the curved roof is a reasonable interpretation of the 25 degree roof pitch requirement. The roofs with associated parapet walls are either minor roof elements or are generally viewed from rights of way or laneways.

Findings

The applicants' frustration with the process is understandable to a degree. Although the applicants' enquiry specifically referred to setbacks, something as fundamental as roof form warranted a response alerting the applicant to the roof pitch issue. It is understandable that on a preliminary assessment, matters such as site cover, projections into a setback area, overshadowing, subtle over-height issues or cones of vision may escape notice in a preliminary assessment. However, the roof form with a most obvious lack of a pitched roof is not something that should escape notice. On the other hand, although the applicant disputes the requirements for a pitched roof, there is sufficient planning framework to indicate that something as fundamental as roof form should have been specifically addressed with planning officers.
In terms of the applicable clause, the Tribunal finds there is no uncertainty and that cl 3.4.2.1 of ASP 13 describes the applicable requirements. The title of the clause clearly indicates that it applies to single residential development in the R30 and R40 zones. The applicants' site is a single residential site in a R40 zone and therefore the only reasonable conclusion is that the single residential criteria apply. The applicants' argument that R40 is medium to high density is true but irrelevant. In the summary of ASP 13, District 2 is described as including 'uses of Hotel, Resort Facilities, Mixed [U]se (Commercial and Apartments) and single residential, grouped and multiple dwelling developments at densities between R30 & R160'. The medium to high density criteria of cl 3.4.2.2 ASP 13 would apply to a grouped dwelling site in the R40 zone, but there can be no question that cl 3.4.2.1 applies to single residences in the R40 zone.
The applicants' argument that cl 3.4.2.1(viii) of the ASP 13 is not applicable because 'the main roof is visible from the street' is wrong and incorrectly implies reference to roofing materials rather than roof form.
The correct interpretation of cl 3.4.2.1(viii) is fundamental to the outcome of this review. This Tribunal has dealt with the principles of interpretation in Lloyd and Shire of Busselton [2011] WASAT 129 where at [22] [26] it was stated:
In my view, there are several principles of statutory interpretation that need to be considered and applied in the resolution of this issue of construction. Speaking generally, they are as follows.
The first is the need to give effect to the Scheme as an instrument having the force of law. Thus, for example, the ordinary rules of statutory interpretation governing the resolution of any apparent 'inconsistency' within an instrument as between, for example, the general and the specific, will be applicable to the extent necessary.
Secondly, the instrument must be interpreted having regard to the actual words used, whilst attention is also to be directed as to whether those words have any defined or specialist meaning. Next, regard must be had to both a scheme's purpose or purposes and its regulatory context whilst assuming a level of coherence about the instrument taken as a whole.
However, these interlocking tasks of statutory interpretation must be subject to the overarching recognition that as regards town planning schemes, they have often not been drafted by lawyers, and, further, that they must be interpreted in a practical and common sense way.
Or, as I have suggested elsewhere, the Scheme must be read as a whole and applied in a practical and common sense, and not overly technical way in a fashion that would best achieve its evident purpose: see Marshall and City of Rockingham [2006] WASAT 249 at [34] [35]; and Optus Mobile Pty Ltd v City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11 at [35] - [37].
The word 'roof' is not described in the planning framework. The intended meaning of 'roof' is clear in the context that in common understanding the major elements of a dwelling are floor, walls and roof. The roof is the lid on top of the dwelling. In technical terms, the word 'roof' is clearly referring to roof form and is not limited to the narrower term 'roof materials'. This is most clearly understood in the particular example of a hypothetical dwelling with a 25 degree roof pitch entirely enclosed by fascias or parapets. The roof (form), when visible from the street, would present as a flat roof and would therefore breach the requirements of ASP 13.
The ASP 13 has a clear requirement for the main roof to have a minimum roof pitch of 25 degrees (when visible from the street). The words 'when visible from the street' do not remove the clearly intended requirement for the 25 degree roof but rather provide flexibility for lower roof pitches at the rear of the dwelling.
The applicants are correct that the roofing materials are not visible from the street because they are concealed behind a fascia/parapet wall. However, the nature of the roof form (that is, a flat(ish) roof) is clearly expressed in the view from the street, based on the relationship of walls and windows, and the lack of visible roof materials.
The combination of cl 3.4.2.1(viii) and Table 1 of ASP 13 has the effect of limiting buildings to two storeys above ground level with the qualification that cl 3.4.2.1(viii) states that '[u]se of the roof space is encouraged'. Table 1 limits maximum height to 9.5 metres. Consequently, the requirement for a pitched roof limits third storeys to any space that can be contained within the pitched roof.
The applicants argued that the proposed dwellings will enhance the streetscape in accordance with the provisions of the R Codes. The objective, in part, of 'Design element 6.2 Streetscape requirements' of the R Codes is '[t]o contribute towards attractive streetscapes'.
Clause 4.4.6 of DPS 2 specifically enables ASP 13 to vary R Code requirements. In the case of streetscapes, there are no specific requirements in the R Codes relating to design. ASP 13 has clearly defined requirements for 25 degree roof pitches that apply to the entire area of Precinct 2C.1, including both narrower roads and wider roads such as Swansea Promenade and Ocean Falls Boulevard.
Although the applicants correctly referred to a variation in design style and roof elements, it is apparent that the respondent has consistently applied the provisions in ASP 13 for a requirement for a 25 degree roof pitch. The respondent has shown some flexibility by permitting minor roof elements to be flat. The flexibility was taken to perhaps unfortunate extremes in permitting a curved roof on a nearby property. Nevertheless, on the evidence available to the Tribunal, it is apparent that the respondent has correctly required all single residential dwellings in the area covered by ASP 13 and DAP 1 to comply with cl 3.5.2.1(viii) ASP 13 and provide the main roof with a 25 degree pitch when the roof is visible from the street.
In the unlikely event that the applicants are correct in arguing that the roof pitch requirement is only applicable to roofs visible from the street, the application would still fail. Clause 6.8 of DPS 2 describes various matters which Council shall have due regard to in considering an application. Relevant matters include:
(i)the compatibility of a use of development within its setting;
…
(n)the preservation of the amenity of the locality; [and]
(o)the relationship of the proposal 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 proposal[.]
All other dwellings in the area covered by DAP 1 have pitched roofs. Those dwellings that have a third storey have the third storey contained within the roof space, as encouraged by the Structure Plan. Although the proposal complies with the maximum height requirements, the provision of a third storey which is not contained within a roof space will result in excessive bulk. The excessive bulk will be incompatible within its setting and have an adverse impact on the amenity of the locality.
Therefore, the Tribunal finds that the proposed roof pitch does not comply with the planning framework.

Whether the proposed front setback complies with the planning framework

The parties agree that the front setback compliance relates to the screen and louvres rather than the main structure of the proposed dwelling. The setback requirements are provided by Table 1 of ASP 13 where the minimum front setback is 3 metres and the maximum front setback is 4.5 metres.
The setback to the ground floor of the proposed dwelling varies with the closest wall setback between 4.193 metres and 4.61 metres. Other walls are set further back but do not breach the maximum setback area because they are part of a covered alfresco area with the setbacks established on the first floor. The first floor is setback 3 metres to a long thin triangular shaped balcony with the main wall setback between 3.2 metres and 3.887 metres. The top floor has a slightly more complicated shape but is, in general, setback between 3.2 metres and 3.37 metres.
The contentious setbacks are the distance to some vertical sun louvres facing the front elevation, a slatted screen at the east end of the louvres and a screen to the alfresco area.
The exact setback to these building elements are not provided. However, by scaling the drawings, the louvres are set back approximately 2.3 metres from the front boundary. The width of the louvres' structure (again by scaling) is approximately 3.4 metres on the face of the building which at the upper two levels is approximately 10.5 metres wide. Mr Sankey stated that the width of the louvres was approximately 21% of the frontage of the site.
This structure only exists at the upper two levels.
In addition, there is a 2.4 metre high slatted screen at ground level. The screen is located generally under the louvres but is a wider structure, at 5.8 metres long (by scaling).

Summary of the applicants' argument

Mr Sankey argued that the screen and louvres are minor incursions and comply with cl 6.2.1 and cl 6.2.2 of the R Codes. He argued that the R Codes are the relevant planning framework because ASP 13 and DAP 1 are silent on the matter of incursions. He stated that:
[T]he louvres are not a solid element, they are fixed open to allow light and vision through and would not be perceived as solid. They in no way detract from the amenity of the street or the views of adjoining neighbours.

Summary of the respondent's argument

Mr Hesketh stated:
I contend that ASP13 and DAP1 prescribe a minimum primary street setback of 3m and a maximum primary street setback of 4.5m. The setback requirements of ASP13 and DAP1 are an intended variation to Clauses 6.2.1 and 6.2.2 of the RCodes and therefore prevail over these provisions. I note that Clause 6.2.2 of the RCodes applies to the setback prescribed under Clause 6.2.1 of the RCodes, not the minimum setback prescribed under ASP13 and DAP1. I contend that the proposed screens are not similar to an eaves incursion, as an eaves incursion would occupy a small portion of the sightlines from an adjoining dwelling (at roof level), whereas the proposed screens extend vertically along the first and second storeys of the proposed dwelling and therefore have a much greater visual impact.
When questioned by the applicant during the hearing in relation to the provisions of the R Codes which provide for minor incursions, Mr Hesketh maintained that ASP 13 is the relevant planning requirement because it refers to minimum setbacks. On further questioning about setbacks and the definition in the R Codes that refers to setback of walls, Mr Hesketh argued that the louvres and screens were a significant visual element that would have an adverse impact on views, and that because of the size of the structure it could not be considered as a minor incursion.

Findings

There are three questions for the Tribunal to answer in dealing with this issue. The first is to determine whether cl 6.2.2 of the R Codes has any relevance. If so, it is then necessary to determine whether the proposed structures are minor incursions and, finally, if so, whether they are acceptable.
The relationship between ASP 13 and the R Codes is clearly explained in cl 4.4.6 of DPS 2 which permits ASP 13 to vary R Code requirements. To fully understand the relationship between ASP 13 and the R Codes it is necessary to refer to cl 9.8.3 of DPS 2. The ability to vary the requirements of R Codes' provisions is confirmed in cl 9.8.3(b) of DPS 2. However, it is clear from cl 9.8.3(b) that if a Structure Plan does not make:
… a clear statement of intent to … make provision for any standard or requirement applicable to zones or R Codings to be varied … [then] … the standards and requirements applicable to zones and R Codings under the Scheme shall apply to the same extent to the areas having corresponding designations under the Agreed Structure Plan.
Clause 9.8.3(f) provides that '… if there is any other inconsistency or conflict not addressed as an intended variation by the Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail'.
Similar provisions apply for detailed area plans.
Therefore, the site is zoned R40 and hence the R40 provisions of the R Codes apply to the applicants' site, except where they have been varied by ASP 13 or DAP 1. Table 1 of the R Codes provides for a minimum front setback of 4 metres in areas coded R40. There is no maximum setback.
Table 1 of ASP 13 varies the R Codes by requiring the front setback to be a minimum of 3 metres and a maximum of 4.5 metres. However, neither ASP 13 nor DAP 1 vary the definitions of the R Codes and nor do they refer to minor incursions.
The Tribunal does not accept Mr Hesketh's argument that ASP 13 requires an absolute minimum of 3 metres because of the use of the word 'minimum' in Table 1 of ASP 13. Table 1 of the R Codes also refers to minimum front setbacks and yet the R Codes permit variations to the minimum setback. There is no text in either ASP 13 or DAP 1 that suggests a different approach from the R Codes. All that has been varied are the distances.
The Tribunal finds that because ASP 13 and DAP 1 are silent on the matter of incursions into the front setback area, it is appropriate to use cl 6.2.2 of the R Codes to assess the louvres and screens that project into the front setback area.

The question is now whether the louvres and screens are minor incursions into the front setback area.
The definition for 'setback' in the R Codes is:
The horizontal distance between a wall at any point and an adjacent lot boundary, measured at right angles (90 degrees) to the boundary. (Tribunal emphasis)
The significant word is 'wall'. The R Codes define a 'wall' as:
The vertical and external face of a constructed building comprising solid building material and including enclosures to verandahs and balconies.
Clause 6.2.2 of the R Codes refers to 'intrusions' but does not provide a definition. The closest definition is for 'minor projection' which is defined as:
…
•In relation to a wall: a rainwater pipe, vent pipe, eaves overhang, cornice or other molding or decorative feature, provided that the projection does not exceed 0.75 m measured horizontally.
Although the R Codes do not define 'minor incursions', the intent is generally clarified in cl 6.2.2 of the R Codes. The performance criteria provisions are described in cl 6.2.2 P2 as '[m]inor incursions and projections not to detract from the character of the streetscape'. The acceptable development standards at A2 provide an indication of the sort of incursions that are considered acceptable:
(i)In accordance with figure 1b, a porch, balcony, verandah, chimney or the equivalent, may (subject to the Building Code of Australia) project no more than 1 m into the street setback area, provided that the total of such projections does not exceed 20 per cent of the frontage at any level.
(ii)Any eaves not forming part of a porch, balcony or a verandah to project not more than 1 m into the street setback area for the full width of the building.
A further explanation of the intention of the R Codes is provided in the accompanying document Residential Design Codes of Western Australia Explanatory Guidelines (R Code Guidelines) where in Pt 6 there is discussion on the topics of streetscape and front setbacks. Under the heading 'Other structures' at Design Element 6.2 of the R Code Guidelines the following explanation is provided:
Other than carports, no substantial structures are allowed in street setback areas. Structures that may be allowed are:
•fences or walls, which are the subject of separate consideration;
•landscape or sculptural structures, such as fountains, designed to enhance the relationship between [the] street and [the] house; and
•appropriately scaled archways or gateways, in character with the streetscape.
In addition, architectural features including balconies, porches, chimneys and open verandahs, may be acceptable as minor incursions into the setback area, the criterion being that the main setback line is not unduly interrupted. Those minor incursions, where they do not exceed the limits prescribed in clause 6.2.2 A2 i and ii, should not be taken into consideration when calculating average setback requirements.
It is arguable that louvres in front of a window or a wall are not a 'wall' in terms of measuring setbacks. The louvres are not solid and do not enclose a balcony or veranda. However, the previous statement needs to be qualified because the louvres will appear solid when viewed from some points in the street and, hence, to that extent, they partially enclose the balcony on the first floor.
The treatment of the screens is less clear. Mr Sankey argued they are not solid structures. On the drawings they are described as 'slatted screens' and on the elevations they are represented by fairly dense horizontal lines. There is no detail showing the construction of the slatted screens and therefore no means to determine their 'sense of openness'.
The difficulty for the applicants is that although the screens may not be solid and may be transparent to a degree, they could also be considered to be enclosing the balcony on the first floor. Similarly, the screening on the ground floor partially encloses the alfresco (veranda) area and acts as a wall.
Given the definitions for 'wall' and 'minor projections', together with descriptions of some minor incursions, it is not unreasonable to conclude that the louvres are a minor intrusion.
However, the screen to the alfresco area cannot be considered as a minor intrusion. It is parallel to the front walls of the dwelling. From the evidence submitted, it does not appear to be sufficiently open and is most likely to be perceived as an enclosure to the alfresco (veranda) area. The perception is likely to be reinforced by the strong visual element of the louvres above the screen, which are almost in the same plane, although visually separated.
The screen on the second level is not attached to a balcony and is at right angles to the front wall. Despite the uncertainty about the openness of the slatted screen, in a marginal finding, the screen on this level can be classified as a 'minor intrusion'. However, the screen that projects at right angles to the front wall on the first floor is a different proposition. There will be a threshold where it is sufficiently open to be treated as a minor intrusion. However, on the evidence available, it will be perceived as enclosing one end of the balcony and should therefore be treated as a wall.
The final question for the Tribunal to answer is whether the minor intrusions should be approved. Clause 6.8 of DPS 2 describes various matters which Council shall have due regard to in considering an application. Relevant matters include:
(i)the compatibility of a use of development within its setting;
…
(n)the preservation of the amenity of a locality; [and]
(o)the relationship of the proposal 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 proposal[.]
In addition, the objective for 'Streetscape requirements' in the R Codes is in part 'to contribute towards attractive streetscapes' which is mirrored in the performance criterion in cl 6.2.2 of the R Codes:
Minor incursions into street setback area
P2Minor incursions and projections not to detract from the character of the streetscape.
Mr Sankey, the architect for the proposal, in his various submissions and statements made consistent reference to the high quality of the design and the positive contribution the proposal would make to the streetscape.
The R Code Guidelines discuss the role of design and design controls noting that the R Codes in general confine themselves to core elements leaving design control to local authorities via appropriate control mechanisms. Relevant explanations in the sections dealing with the streetscape element include:
Scope of design control
…
It is important to allow as much scope as possible for innovative design that expresses contemporary values in a direct honest way …
and
Architectural integrity and identity
In general, it is desirable that there should be consistency of design of different components of a single development, as seen form the street …
The Tribunal considers that the proposal is well designed. The various visual elements work well together with the louvres and screen being part of a visually coordinated whole. Unlike many modern dwellings with an 'A' grade elevation to the street and cheaper/different or 'B' grade elevations to the sides and rear, the applicants' proposal is a coherent design that would make a positive contribution to the streetscape, not only when viewed straight on but, more importantly, when moving along the street. A pedestrian walking down the street would be able to appreciate the well balanced three dimensional design with the different elevations and visual elements including the screens and louvres all contributing to a positive impact on the streetscape.
However, in its setting, the building will appear to encroach too much into the front setback area because the screen to the alfresco area will be perceived as a wall. This problem will be exacerbated by the lack of a pitched roof, where, although the proposal complies with the height limits, it will have an excessive bulk. It is likely that the louvres may contribute to the sense of excessive bulk.
Finally, the various projecting elements have the potential to have an adverse impact on amenity especially through the loss of views.
The screen on the ground floor not only breaches setback requirements, it may impact on views currently enjoyed by the neighbour. Similarly, the louvres and screen at first floor level may also impact on views. There was no evidence on lines of site or location of the neighbours' windows. Although there was an outline indication of the neighbours' balcony, there was insufficient evidence to conclude that the proposal would not have an adverse impact on amenity. Similarly, from the evidence available, although it is unlikely that the louvres and screen at second floor level would have an adverse impact on amenity, it was not possible to conclude the louvres and screen at the second floor level would be acceptable in terms of impact on amenity.
The Tribunal is of the opinion that relatively minor modifications to the design and detailing may enable the intrusions to be approved if the applicants can demonstrate there will be no adverse impact on amenity with particular reference to views. However, as the proposal stands, for all the proposed reasons given above, the Tribunal finds that the proposed front setback does not comply with the planning framework.

Whether approval of the proposal would be in the interests of orderly and proper planning

Mr Sankey argued that the proposal complies with orderly and proper planning because it is consistent with large numbers of similar approvals in the area covered by ASP 13 and that the proposal complies with all requirements of the R Codes. He also argued that with the exception of two areas of discretion it complies with all aspects of ASP 13 and DAP 1. Finally, Mr Sankey argued that it is reasonable to exercise discretion, and therefore consistent with orderly and proper planning, because of the substantial compliance, the minimal need for discretion, the high quality of design and the positive contribution to the streetscape.
Mr Hesketh argued that discretion does not exist to approve the proposal and, therefore, approval would represent an ad hoc approach to planning and be inconsistent with orderly and proper planning. He stated that the respondent's application of ASP 13 and DAP 1 has been consistent and that nearly all the precedent examples referred to by the applicants were in a different district of ASP 13 and covered by a different planning framework. Mr Hesketh concluded that the two remaining examples cited by the applicants were irrelevant because they were determined to comply with the requirements of the planning framework.
The Tribunal finds that the matter of orderly and proper planning does not arise with reference to the issue of the front setback because the questions raised are typical of a routine planning assessment involving the exercise of discretion. The questions related to matters such as determining the correct planning framework, interpretation of the framework and discretion. For example, with reference to the slatted screens, there was a question of classification and then there was the threshold question on the openness of the slatted screens. There is a reasonable possibility that at some point a screen of varying openness would cross a threshold and cease being an enclosing wall and become a minor incursion. Although the Tribunal determined it was not reasonable to exercise discretion and approve the front setback, it was conceivable that with some relatively minor revisions to the design or details, the proposed setback could become acceptable.
On the matter of roof pitch in the context of orderly and proper planning, the Tribunal understands why the applicants argue that discretion must exist for the proposed roof. It is difficult to comprehend how a matter as fundamental as roof pitch could escape comment in a preliminary assessment by the respondent's planners. It is an obvious characteristic of the building design that should be apparent from even the briefest glance at the elevations. Failure to mention this essential element of the design reasonably led the architect to conclude that discretion existed to vary the roof pitch.
One of Mr Sankey's arguments concerning orderly and proper planning related to design merit where he stated that 'rules should not prevent good design'. The Tribunal finds that design merit is not an issue in this review. Despite the obvious high quality of design, the planning framework does not permit the proposed building form. However, the planning framework does not prevent good design. It should be possible to propose a well designed building that complies with essential elements of the planning framework.
The Tribunal found that there was not any doubt concerning the correct planning framework. DPS 2 enabled ASP 13 to vary requirements of the R Codes. Clause 3.4.2.1(viii) of ASP 13 requires that where a roof is visible from the street, the minimum roof pitch shall be a minimum of 25 degrees. There is no discretion. For the applicants to argue that the roof pitch is not visible because it is hidden behind a parapet wall misinterprets the obvious intent of the clause and makes no distinction between roof and roofing materials.
There is an argument that the Council's approval of the nearby curved roof is at best an unfortunately adventurous interpretation of the minimum roof pitch of 25 degrees.
The requirement that roofs, visible from the street, shall have a minimum roof pitch of 25 degrees is a clear intention of the planning framework. Therefore, approval of the applicants' proposed roof would be an ad hoc abandonment of the planning framework and would consequently be inconsistent with orderly and proper planning.

Conclusion

On the first issue, the Tribunal found that the relevant planning requirements were described in a Structure Plan. The evidence available to the Tribunal indicated the respondent had consistently applied the provisions of the Structure Plan which required that where the main roof was visible from the street, the 'roof pitch shall be a minimum of 25 degrees'. The respondent had shown reasonable flexibility by permitting minor roof elements to be flat and, in one case, flexibility possibly not anticipated by the Structure Plan, by permitting a curved roof on a nearby property. The Tribunal found that the roof, when viewed from the street, was required to be pitched at 25 degrees and that the requirement was a general requirement dealing with the entire roof and not limited to roofing materials. The proposal provided a roof with a 2 3 degree pitch behind a fascia/parapet wall. The Tribunal determined that the roof, when viewed from the street, presented as a flat roof.
Even if the applicants had been successful in arguing that the roof was not visible from the street and did not require a minimum roof pitch of 25 degrees, the proposal still failed because of excessive bulk. Therefore, the Tribunal found that the proposed roof pitch did not comply with the planning framework.
The second issue, which dealt with whether the proposed front setback complied with the planning framework, was surprisingly complex. It was agreed by the parties and accepted by the Tribunal that apart from the screens and louvres which projected into the front setback area, all other building elements complied with the front setback requirements. The Tribunal found that the relevant Structure Plan and detailed area plan did not deal with the matter of intrusions and that they needed to be assessed under the provisions of the R Codes. The Tribunal then found that that the screen to the alfresco area and the screen near the end of the first floor balcony were properly treated as walls because they provided some enclosure to the balcony and alfresco (veranda) areas. Those elements could not be classified as minor intrusions and therefore breached the minimum setback requirements. On the other hand, the screen at the second level and the louvres at both levels were correctly classified as minor intrusions. Finally, the Tribunal found that although there was less risk at the second floor level than the first floor level, there was a reasonable chance that the minor intrusions would have an adverse impact on amenity, with particular reference to views. Therefore, the Tribunal found that the proposed front setback did not comply with the planning framework.
On the third issue, the Tribunal found that the question of orderly and proper planning only arose in relation to the question of roof pitch. The Tribunal found that the proposed roof was clearly inconsistent with roof pitch requirements and that approval of the proposal would be an ad hoc decision and therefore inconsistent with orderly and proper planning.
Although the Tribunal determined that the applicants were unsuccessful on all three issues, the most significant failure was the roof pitch because it was fundamental to the design proposal. The front setback issue was capable of approval with relatively minor design and detailing revisions, together with additional information relating to whether there was an adverse impact on views. The issue of orderly and proper planning only arose because the proposed roof was clearly inconsistent with roof pitch requirements.
It followed that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 9 February 2011 to refuse development approval for a new three storey dwelling at No 18 (Lot 302) Swansea Promenade, Mindarie is affirmed.

I certify that this and the preceding [124] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER