SUNSET COAST PTY LTD and CITY OF MANDURAH - [2012] WASAT 141

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SUNSET COAST PTY LTD and CITY OF MANDURAH [2012] WASAT 141

MEMBER: MS R MOORE (MEMBER)
MR N SHAW (SESSIONAL MEMBER)

HEARD: 26 APRIL 2012

DELIVERED : 6 JULY 2012

FILE NO/S: DR 335 of 2011

BETWEEN: SUNSET COAST PTY LTD
Applicant
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning Development application Refusal Four storey multiple dwelling development Development height policy Whether bulk and scale of development is consistent with existing or future desired built form of locality

Legislation:

Building Code of Australia
City of Mandurah Town Planning Scheme No 3
Peel Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 Residential Design Codes of Western Australia 2010

Result:

Application for review allowed
Development approval granted with conditions

Category: B

Representation:

Counsel:

Applicant: Mr M Swift (Acting as Agent)
Respondent: Mr C Slarke

Solicitors:

Applicant: Michael Swift & Associates (Town Planners)
Respondent: McLeods

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

Nil

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 four storey multiple dwelling development at No 113 ‑ 115 (Lot 2, Lot 3 and Lot 44) Ormsby Terrace, Mandurah.
The City of Mandurah was of the view that the proposed four level apartment building was of a bulk and scale that would have an adverse impact on the visual and residential amenity of the area, which is characterised by single storey and two storey developments.
The applicant argued that the area was in transition and the desired built form of the locality included buildings of a height and size similar to this development.
The Tribunal found that while the existing built form of the locality consisted of a wide variety of styles, ages and sizes of buildings, many of which were single storey and two storey, the planning framework provided for a different future built form which could include larger buildings with increased building height. This was indicated by the R 40 density coding, the encouragement of development over more than one lot, and the provision of a higher than usual maximum building height.
The Tribunal determined that the proposed multiple dwelling development was of a bulk and scale indicated in the local planning framework and was consistent with the future desired built form of the locality, and therefore satisfied the performance criteria of the State Planning Policy 3.1 Residential Design Codes of Western Australia 2010 in relation to building size.
The application for review was allowed, the decision of the respondent to refuse development approval was set aside, and a decision granting conditional development approval was made.

Introduction

These proceedings involve an application brought by Sunset Coast Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the City of Mandurah (City or respondent) dated 23 August 2011 to refuse development approval for 12 multiple dwellings at No 113 ‑ 115 (Lot 2, Lot 3 and Lot 44) Ormsby Terrace, Mandurah (site).

Site and locality

The site is irregular in shape and consists of Lot 44, Lot 2, and Lot 3. Lot 2 and Lot 3 contain two of a three grouped dwelling development and have a combined site area of 714 square metres. Lot 44 is rectangular with an area of 1,012 square metres. The amalgamated site will have a frontage to Ormsby Terrace of 33.67 metres, a maximum depth of 50.29 metres, and a total site area of 1,726 square metres.
The site has a minimal slope of 0.28 metres over 33.67 metres at the front boundary and 0.5 metres over 50.29 metres at the south‑western side boundary. According to the applicant's plans, the average site ground level is 2.15 AHD (Australian Height Datum).
The site is on the south‑eastern side of Ormsby Terrace and is approximately 0.5 metres lower than the street. The land on the north‑western side of Ormsby Terrace rises up approximately 4 ‑ 5 metres to the foreshore reserve. This is illustrated along Barry Street, which is perpendicular to Ormsby Terrace and provides a view corridor from the site to the ocean.
The Tribunal had the benefit of a view of the site in the company of the parties and their representatives and planning experts on the morning of the hearing.
The view illustrated the existing development to the north‑east and south‑west of the site as predominantly single storey and two storey dwellings, varying in age and style from mid‑twentieth century 'beach houses' to more modern single and grouped dwelling developments. On Barry Street, there are developments of two storeys and two storey plus basement garages designed to maximise views to the ocean. More recent developments abutting the foreshore reserve are two storey.
It should be noted that approximately 450 metres south‑west of the site, at No 7882 Ormsby Terrace, there is an existing five storey multiple dwelling development.

Planning framework

The site is zoned Urban under the Peel Region Scheme, and Residential with a density coding of R 40 under the City of Mandurah Town Planning Scheme No 3 (TPS 3 or scheme).
Clause 4.5.1 of TPS 3 states that the purpose and intent of the Residential zone is as follows:
The Residential Zone is intended to promote a high quality residential environment by maintaining the quality and character of existing residential areas and providing for a range of residential densities and housing types throughout the City.
Clause 4.5.2.2 of TPS 3 requires development and subdivision standards to be as per the State Planning Policy 3.1 Residential Design Codes (2010) (Codes) or as per Zoning Table 5, and that, where there is a variation to the Codes in the Scheme, the subdivision or development shall comply with the provisions of the Scheme.
Clause 4.5.3.4 of TPS 3 refers to a specific provision in relation to height limit as follows:
In considering any application for planning approval, Council may limit the height of buildings to preserve the amenity of the area.
Clause 7.5.1 of TPS 3 sets out the matters that the Council shall have due regard to when considering an application for planning approval, and includes the following:
(a)the provisions of this Scheme and any other relevant town planning scheme operating within the district;
…
(c)any approved Statement of Planning Policy of the Commission;
...
(e)any planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme;
…
(g)the requirements of orderly and proper planning;
…
(m)the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development;
(n)the size and shape of the land to which that development application relates, the siting of any building or works thereon and the area to be occupied by that development;
...
(p)the relationship of that development to development on adjoining land or on other land in the locality;
…
(x)the existing and likely future amenity of the neighbourhood;
…
Clause 9.6.2 of TPS 3 provides the relationship of local planning policies to the Scheme as follows:
…
9.6.2.1 If a provision of a Local Planning Policy is inconsistent with the Scheme, the Scheme prevails.
9.6.2.2 A Local Planning Policy is not part of the Scheme and does not bind the Council in respect of any application for planning approval but the Council is to have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making its determination.
Note: Local Planning Policies are guidelines used to assist Council in making decisions under the Scheme. Although Local Planning Policies are not part of the Scheme, they must be consistent with, and cannot vary, the intent of the Scheme provisions, including the Residential Design Codes. In considering an application for planning approval, the Council must have due regard to relevant Local Planning Policies as required under clause 7.5.
The following documents are also of relevance to this matter:
•State Planning Policy 3.1 Residential Design Codes (2010)
•City of Mandurah Local Planning Policy LPP 10 Residential Design Codes Provisions (May 2010) (LPP 10)
•City of Mandurah Local Planning Policy No 12 Development Height Policy (November 2002) (LPP 12)

City's decision

The City resolved to refuse the proposed development of 12 multiple dwellings at its meeting on 23 August 2011 for the following reasons:
(1)The proposed development exceeds the acceptable development standard for plot ratio as identified in the Residential Design Codes of Western Australia.
(2)Given that the application site is not within a Precinct Plan area which identifies the future desired built form for the locality, it is considered that the building is of a bulk and scale that will impact adversely on the visual and residential amenity of the area which is characterised by single and two storey developments.
(3)The development is not considered to be proper and orderly planning.
Following mediation and the preparation of amended plans, the Tribunal invited the City to reconsider its decision in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The City reconsidered its decision on 31 January 2012 and affirmed its original decision.

Proposed development

The amended plans prepared by Dolphin Design and Drafting, dated 24 October 2011, illustrate the proposed development now the subject of this review. The amendments include, among other things, a reduction in plot ratio from 0.84 to 0.67, an increase in boundary setbacks, and an increase in the number of apartments from 12 to 18.
The amended proposed development contains 18 multiple dwellings within a four storey building. The ground level houses car parking, an entrance lobby and an enclosed 'alfresco' area opening onto a patio and lap pool. The upper three levels contain residential units with a lift and stair access, 12 single bedroom and 6 two bedroom units, all with balconies.
The front (north‑west) façade shows five vertical elements, which divide the building into four sections and project higher than the concealed roof. The two end sections are set back from the street and have smaller balconies. The building height is 10.52 metres to the top of the concealed roof over the two middle sections and drops down to 10 metres over the two end sections. There are also some pyramid roof forms to the rear of the building which provide cover to the light‑wells.
The building is a single structure, 23.5 metres wide and 27 metres deep with an additional single storey roof covering part of the rear car parking area. The building is set back 4.05 metres from Ormsby Terrace, 4.4 metres from the north‑east boundary and 5.8 metres from the south‑west boundary.

The issues

The respondent's statement of issues, facts and contentions presented the following two issues for determination by the Tribunal.
1)Does the proposal meet performance criteria 7.1.1 P1 of the Codes?
2)Is approval of the proposal futile, premature or otherwise inappropriate?
At the hearing, the respondent chose not to proceed on Issue 2 and, consequently Issue 1 became the sole issue to be determined by the Tribunal.

Does the proposal satisfy performance criteria 7.1.1 P1 of the Codes?

Part 7 of the Codes refers to design elements for multiple dwellings in areas with a density coding of R 30 and above. The proposal, the subject of this review, is for 18 multiple dwellings in an area with a density coding of R 40.
Clause 7.1 of the Codes refers to the development context and has the following stated objective:
To ensure that development of multiple dwellings occurs with due regard to the existing development context and/or the desired future built form for the locality as defined by the local government planning framework.
Clause 7.1.1 of the Codes refers specifically to building size. Under the acceptable development provisions of this design element, the plot ratio for sites with an R 40 coding is 0.6:1. The proposed development has a plot ratio of 0.67:1, and therefore needs to be assessed against the performance criteria for building size as follows:
Development of the building is at a bulk and scale indicated in the local planning scheme and is consistent with the existing or future desired built form of the locality.
As described earlier, the existing built form consists of single storey and two storey residential development on the south‑east side of Ormbsy Terrace, with some three storey (including basement garages) developments on the northwest side of Ormsby Terrace and on Barry Street, in close proximity to the site.
Mr Algeri, a town planner appearing on behalf of the respondent, indicated that the existing development on the north‑western side of Ormsby Terrace is greater in height than development on the southeastern side in order to maximise views of the ocean. Mr Swift, a town planner appearing on behalf of the applicant and the applicant's representative, responded that the proposed development will also have views from the upper levels. This is due to the extra height and the view corridor that exists from the site along Barry Street to the ocean.
Mr Swift contended that the immediate locality is defined by developments that have a lot frontage the same or larger than the subject site, and referred to Lot 6 and Lot 7 on the north‑western side of Ormsby Terrace and on the corner of Barry Street. Mr Algeri was of the opinion that this site frontage will be larger than other lots in the area which have an average frontage to Ormsby Terrace of between 20 and 23 metres, and that Lot 6 and Lot 7 Ormsby Terrace are consistent in size with the lots on either side and that 'all corner lots have greater frontage than other lots in a streetscape'. It was his view that the prevailing lot size in the area is 1,000 square metres (with variations) while the subject lot is 1,726 square metres. Mr Swift agreed that the majority of lots in the area have a smaller frontage and lot size than the subject site, but that 'the area is typified by the interspersing of larger sites with the smaller sites as things evolve'.
As planning experts, Mr Algeri and Mr Swift agreed that the proposed building will be larger than the existing buildings on the south‑east side of Ormsby Terrace, but Mr Swift argued that the building would not be dominant as it is located within a cluster of developments on the north‑west side and on Barry Street, which appear greater than two storey in height as they have basement garages, pitched roofs and have a higher natural ground level in absolute terms.
The Tribunal agrees with the planning experts, in that the proposed development will definitely be larger than any of the existing buildings in the locality (excluding the five storey building at No 7882 Ormsby Terrace), but is also of the view that the area is in transition with many of the existing older buildings suitable for redevelopment at the higher density of R 40. In this case, it is appropriate to look to the future desired built form of the locality.
The future desired built form of the locality is informed by the relevant planning framework, which includes the Codes, TPS 3 and the respondent's two relevant local planning policies, LPP 10 and LPP 12.
It was common ground between the parties that under LPP 12 the height standard to be applied to the site is Category C of the Codes. Table 3 of the Codes provides the maximum building heights for Category C as follows:
Top of external wall (roof above) (ii)                  9m
Top of external wall (concealed roof)                 10m
Top of pitched roof (iii) (iv)  12m
iCategory B will apply unless a local planning policy requires the application of Category A (generally single level development) or Category C (development on three levels) or an alternative standard.
…
It should be noted that for multiple dwellings on sites zoned R 40, Table 4 of the Codes provides a maximum height of 7 metres to the top of an external wall with a concealed roof. In this case, LPP 12 and LPP 10 both provide for a greater height and the parties agreed that a maximum height limit of 10 metres above natural ground level applies to the proposal.
The proposal complies with this 10 metre height limit, with two exceptions: glazed pyramid shaped coverings to rear light-wells; and a raised section of flat roof that projects forward of the front façade for the middle 50% of the building. The applicant described this as an 'architectural feature' provided to give vertical relief to the building, but said it was not a necessary part of the design. The respondent said that it did not help to reduce the bulk and scale of the building.
The Tribunal is of the view that the provision of a greater maximum height limit in LPP 12 gives an indication of the future desired built form of the locality. This is emphasised in LPP 10, which also provides the acceptable development standard for building heights for sites zoned R 35 and higher to be in accordance with Category C in Table 3 of the Codes.
The proposal is four levels and no party contended that the reference in Table 3 of the Codes to 'Category C (development on three levels)' had application in the circumstances of this case.
During the hearing, there was discussion regarding the feasibility of constructing four levels within the 10 metre height limit, and the applicant confirmed that they were able to do so and would accept a condition of approval that required this. The Tribunal was assured that the applicant's design could be constructed within both the 10 metre building height limit and in accordance with the requirements of the Building Code of Australia.
The Tribunal is of the view that, given the fact that this area is in transition and the maximum height limit of 10 metres is already greater than the general height limit of 7 metres in the Codes, a condition requiring the height of the building to be at a maximum of 10 metres above natural ground level should be imposed. To be clear, the Tribunal does not agree that the section of roof at 10.52 metres should be described as an 'architectural feature', and is of the opinion that no part of the building should be above the maximum height as set out in Category C of Table 3 of the Codes, other than minor projections as defined in the Codes.
In regard to the bulk and scale of the proposal, Mr Slarke, the respondent's representative, argued that the proposal is not consistent with the existing built form of the locality. It was his contention that because of the amalgamation of three lots, the subject site has an unusual shape as well as an increased frontage and lot area to most of the lots in the immediate locality. This allows for a wider than normal building, which when combined with a 10 metre building height, with a section at 10.52 metres, provides a large building with excessive bulk and scale.
It was Mr Algeri's opinion that, notwithstanding the general compliance with the height requirements of Category C of the Codes, the proposal was not consistent with s 4 of LPP 12 because: the area 'is not identified as an area for greater than two storey development'; the development 'enhances the possibility or the perception of an intrusion to the privacy of surrounding properties [insofar] as they are predominantly single and two storey development'; and the development 'is of significant bulk and scale, particularly in regard to the proposed frontage width, compared to other development in the surrounding locality'.

Mr Swift was of the opinion that the site is located in an evolving neighbourhood undergoing a process of urban renewal and the proposal is consistent with the R 40 zoning that applies to the broader neighbourhood. He referred to LPP 10, which has the following site area requirements for grouped and multiple dwellings:
•The development should be robust, particularly where the area is identified for accommodating changeover time;
•A minimum scale of two storey development is desirable;
•Long, straight and narrow driveways should be avoided, where view corridors and surveillance of shared driveways is to be provided;
•Street frontage is to be provided from dwellings that front the street, with minimal front setbacks and outdoor living areas being located behind the street setback;
•An effective use of space, with nil setbacks between grouped dwellings and to side boundaries should be considered, subject to compliance with the provisions of the R Codes;
•High quality and water sensitive landscaping (refer to section within the verge and all areas that are clearly visible from the street should be developed to compliment the development; and
•Development on a lot(s) creating a development site with frontage greater than 25 metres through use of more than one lot or the sharing of driveways between lots, protected through the use of easements or other agreements.
In order to achieve these principles, development is encouraged over more than one lot (ie, wider than a 20 metre frontage) and in a 'pack' arrangement, whereby the driveway is designed as a 'L' shaped mews.
Mr Slarke, in his closing submissions, conceded that LPP 10 seems to encourage grouped and multiple dwelling development and perhaps the amalgamation of lots, but he still argued that R 40 is a medium density code with minimum site area requirements of 200 square metres per dwelling and 220 square metres on average for grouped dwellings which, while not applicable to multiple dwellings, gives an indication of contemplated lot sizes.
As this application is for multiple dwellings, not grouped or single dwellings, the Tribunal is not convinced by this argument. Part 7 of the Codes provides for multiple dwelling developments in areas with R 30 coding and above, and does not have minimum or average site area requirements. Both LPP 10 and LPP 12 provide the extra building height allowable, and LPP 10 seems to encourage the increase of site areas and frontages and certainly does not prevent the amalgamation of lots. The Tribunal is of the view that there is every likelihood that other lots in the immediate locality may be amalgamated in the future.
Factors informing bulk and scale include building height, setbacks and plot ratio. Building height has been discussed above and it is common ground that the setbacks satisfy the acceptable development standards in the Codes. Mr Slarke argued that the plot ratio of the proposal of 0.67 in lieu of the acceptable development standard of 0.6, combined with the larger site area than normal, suggests a significant over development of the site.
Mr Swift stated that the proposal could be 'tweaked' to comply with the plot ratio acceptable development standard of 0.6, but felt that this was not necessary as it would reduce the floor area available for individual apartments but would not, in this case, reduce the external size of the building. Mr Algeri agreed that the plot ratio can be modified by design changes that do not necessarily provide for a building with reduced bulk and scale, but argued that in his experience developers do not build buildings that are larger than necessary.
Mr Slarke also contended that the combination of the height and width of the proposal produced a building with excessive bulk and scale, which is not attenuated by setback or design features. He also was of the view that LPP 10 encouraged 'robust' development, 'particularly where the area is identified for accommodating change over time', which meant a design that could stand the test of time.
Whereas, it was Mr Swift's opinion that the design of this building was appropriate as it contained strong vertical elements, had large balconies to the front which provided depth, and had larger than required setbacks to all boundaries. It was his view that it was a high quality development suitable to its location 150 metres from the ocean, 1.3 kilometres from the Mandurah city centre and with good access to schools and public transport.
In regard to the bulk and scale of the proposal, the Tribunal agrees with the applicant that the area is in transition and while the existing built form of the locality consists of a wide variety of styles, ages and sizes of buildings many of which are developed at less than the current R 40 density coding, the planning framework, which includes TPS 3, LPP 10, LPP 12 and the Codes, provides for a different future built form. This future built form is likely to include larger buildings which may be on larger lots with larger frontages, and are likely to have increased building heights similar to this proposal.
The Tribunal therefore finds that the proposal does satisfy performance criteria 7.1.1 of the Codes, in that it is of a bulk and scale indicated in the local planning scheme and is consistent with the future desired built form of the locality.

Conditions

The respondent provided a number of draft 'without prejudice' conditions to be applied in the event that the Tribunal decided to approve the proposed development. The applicant had no objections to any of these conditions.
As discussed earlier, the Tribunal is of the view that a condition requiring the development to be constructed to a maximum external wall height (with a concealed roof) of 10 metres above natural ground level should be applied to any approval. The applicant did not object to this.
The Tribunal also feels that proposed condition 1 should be altered to delete reference to 'stamped approved plans' and refer to the plan prepared by Dolphin Design and Drafting dated 24 October 2011. Also, for clarity, the applicant should prepare a full set of amended plans including the three elevations not shown on this drawing.

Conclusion

The Tribunal has determined that the proposed multiple dwelling development satisfies performance criteria 7.1.1 of the Codes. It follows that the application for review should be allowed, the decision of the respondent to refuse development approval should be set aside, and a decision granting development approval with conditions be made.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent dated 23 August 2011 and affirmed by the respondent, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), on 31 January 2012, to refuse development approval for multiple dwellings at No 113115 (Lot 2, Lot 3 and Lot 44) Ormsby Terrace, Mandurah, is set aside and a decision substituted that development approval is granted subject to the following conditions:
(1)The development shall be carried out and fully implemented in accordance with the plans drawn by Dolphin Design and Drafting dated 24 October 2011 unless otherwise required or agreed in writing by the City of Mandurah and except as varied by the following conditions.
(2)The top of all external walls (with concealed roof) of the development shall have a maximum height of 10 metres above natural ground level.
(3)The subject lots shall be amalgamated prior to the issue of a building licence to the satisfaction of the City of Mandurah.
(4)An application for demolition licence must be submitted to and approved by the City of Mandurah prior to demolition of any existing buildings.
(5)Prior to occupancy, the development shall be connected to reticulated sewer.
(6)Prior to the commencement of the use, vehicle parking, manoeuvring and circulation arrears shall be suitably constructed, sealed, drained, kerbed, marked (including loading and disabled bays) and thereafter maintained to the specification and satisfaction of the City of Mandurah.
(7)Prior to occupancy, the applicant shall provide bike rack(s) within the site, in accordance with the Residential Design Codes, for five bicycles to be parked, to the specification and satisfaction of the City of Mandurah.
(8)Prior to the issue of the building licence, a detailed stormwater plan must be submitted to and approved by the City of Mandurah showing all stormwater from roofed and paved areas being collected and disposed of onsite in landscaped arrears in accordance with water sensitive design principles to the specification and satisfaction of the City of Mandurah.
(9)Prior to the issue of a building licence, a geotechnical report prepared by a suitably qualified geotechnical engineer shall be submitted to and approved by the City of Mandurah. The scope of the report shall be with the City of Mandurah and the report as approved shall be fully implemented and completed to the satisfaction of the City of Mandurah.
(10)The front fence shall be visually permeable above 1.2 metres for a minimum of 50% of the frontage as per the Residential Design Codes to the satisfaction of the City of Mandurah.
(11)Prior to the issue of a building licence, a waste management plan shall be submitted to, and approved by the City of Mandurah. The waste management plan shall be implemented at all times to the satisfaction of the City of Mandurah.
(12)Construction management shall be carried out in accordance with the attached Construction Management Specification. During construction, the approved construction management plan is to be implemented, as required, to the satisfaction of the City of Mandurah.
(13)Prior to the issue of a building licence, a detailed landscape plan/s shall be prepared by a qualified landscape architect or designer and submitted to and approved by the City of Mandurah. Two copies of the landscape plan/s shall be submitted at a scale of 1:200 or 1:100 and shall detail the following:
(a)Proposed trees and shrubs to be planted including species and number. Trees and plants are to be shown in exact location using clear symbols.
(b)Proposed trees and shrubs to be installed to the street verge adjacent to the subject property including species and number.
(c)Proposed landscaping along the lot boundaries
(d)Areas of lawn or other surface materials to be installed.
(e)A coded planting legend listing proposed plants by botanical names and details of pot/bag sizes, spacing and quantity.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER