Taylor and Town Of Vincent
[2006] WASAT 23
•6 FEBRUARY 2006
TAYLOR and TOWN OF VINCENT [2006] WASAT 23
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 23 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:540/2005 | 4 NOVEMBER 2005 | |
| Coram: | MR J JORDAN (MEMBER) | 6/02/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application has been approved subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | MARK TAYLOR TOWN OF VINCENT |
Catchwords: | Development refusal Existing dwelling retained Second house to make two grouped dwellings Noncompliance with Residential Design Codes 2002 density coding Corner lot Density bonus clause of town planning scheme Existing house worthy of retention Contribution of existing and proposed houses to streetscapes Application of policies |
Legislation: | Town Planning and Development Act 1928 (WA) Town Planning Scheme No 1, cl 20, cl 20(2)(b) |
Case References: | Taylor v Town of Vincent [2004] WATPAT 149 Nil |
Orders | The application for approval of the proposed development, as set out in the plans dated 21 September 2005, is allowed subject to the following conditions:,1. a detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Anzac Road and Federation Street verge adjacent to the subject property, shall be submitted to the Town and approved prior to issue of a building licence. All such works shall be undertaken prior to first occupation of the development, and maintained thereafter by the owner(s)/occupiers(s);,2. all external features, such as television antennas (of a nonstandard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), shall be designed integrally with the building, and shall be located so as not to be visually obtrusive;,3. prior to the issue of a building licence, the owner(s) shall enter into a legal agreement with and to the satisfaction of the Town of Vincent, which is secured by a caveat on the certificate(s) of title of the subject land, prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent, undertaking to conserve the existing dwelling on the site. All costs associated with this condition shall be borne by the applicant/owner(s);,4. if the power pole on the Federation Street verge adjacent to the subject dwelling is required to be relocated to accommodate compliant vehicular crossovers, the power pole shall be relocated at the owner's cost prior to the first occupation of the development; and,5. any new street/front wall, fence and gate between the Anzac Road boundary and Federation Street boundary and the main building, including along the side boundaries within this front setback, shall comply with the following:,(a) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;,(b) decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;,(c) the maximum width, depth and diameter of posts and piers being 360 millimetres;,(d) the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50 transparency; and,(e) the provision of a minimum 1.5 metres by 1.5 metres truncation where wall, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : TAYLOR and TOWN OF VINCENT [2006] WASAT 23 MEMBER : MR J JORDAN (MEMBER) HEARD : 4 NOVEMBER 2005 DELIVERED : 6 FEBRUARY 2006 FILE NO/S : DR 540 of 2005 BETWEEN : MARK TAYLOR
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Development refusal Existing dwelling retained Second house to make two grouped dwellings Noncompliance with Residential Design Codes 2002 density coding Corner lot Density bonus clause of town planning scheme Existing house worthy of retention Contribution of existing and proposed houses to streetscapes Application of policies
Legislation:
Town Planning and Development Act 1928 (WA)
Town Planning Scheme No 1, cl 20, cl 20(2)(b)
(Page 2)
Result:
The application has been approved subject to conditions
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : As Agent
Solicitors:
Applicant : Self-represented
Respondent : As Agent
Case(s) referred to in decision(s):
Taylor v Town of Vincent [2004] WATPAT 149
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Mr Mark Taylor applied to the Town of Vincent for approval to develop a second single storey house at the rear of the existing house at no 196 Anzac Road, corner of Federation Street, Mount Hawthorn. The new house would have frontage to Federation Street and the resultant development would be two grouped dwellings.
2 The Town of Vincent refused the application. It said that at 541 square metres the lot is smaller than the 600 square metres required for two grouped dwellings under the R30 coding of the Residential Design Codes of Western Australia 2002 and the development did not warrant the granting of the density bonus available under cl 20 of Town Planning Scheme No 1. The Town of Vincent also referred to minor design issues that did not meet required standards.
3 Mr Taylor argued that the density bonus should be granted because the development would retain the interwar house on the land, which was worthy of retention and which made a contribution to the Anzac Road streetscape of houses of a similar character. Mr Taylor said the proposed second infill house would be of a design and materials consistent with existing houses and would make a positive contribution to the Federation Street streetscape. Mr Taylor amended the design to address the design issues raised by the Town of Vincent.
4 The Tribunal was presented with the amended plans, a coloured illustration, and photographs of neighbouring houses in Anzac Road and Federation Street. These and the arguments presented by the parties were considered in the light of the policies the Town of Vincent has in place for this locality. The Tribunal formed the view that the proposed development warranted the granting of the density bonus, and the application was approved.
Application
5 This is an appeal by Mr Mark Taylor (applicant) against a refusal by the Town of Vincent (respondent) to grant planning consent for the proposed demolition of an existing shed and the construction of a second dwelling on lot 556 (no 196) Anzac Road, Mount Hawthorn (subject land).
(Page 4)
6 The subject land has an area of 541 square metres and is a corner lot with a southern frontage of 13.42 metres to Anzac Road and an eastern frontage of 40.29 metres to Federation Street. Fronting Anzac Road is a brick and tile single storey "interwar bungalow".
7 Proposed is an additional single storey brick and tile house facing Federation Street, in what is now the backyard of the existing house. The two houses as now proposed would be separated by a 3 metre wide space to provide for two tandem parking bays to be used by the existing house. The new house would have a carport with a parking bay adjacent to the northern boundary. A fence of face brick with timber picket inserts would replace the existing fibre cement fence along the Federation Street frontage.
8 In August 2004, the then Town Planning Appeal Tribunal dismissed an appeal against the respondent's refusal to grant planning consent for the development of a second dwelling, of different design, facing Federation Street behind the existing dwelling on the subject land: Taylor v Town of Vincent[2004] WATPAT 149.
9 A fresh application was refused by the respondent in April 2005. A further application was lodged in June 2005 and the respondent refused this on 9 August 2005. This application for review was then lodged with the Tribunal. The reasons given for the refusal were:
"1. the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
2. the development does not comply with the average and minimum site area per dwelling requirements of the Residential Design Codes R 30 density code;
3. the development does not comply with the access and car parking requirements of the Residential Design Codes;
4. the Council has previously resolved that the place as it will remain, does not warrant a density bonus under Clause 20 of the Town's Town Planning Scheme No. 1;
5. consideration of the objections received;
(Page 5)
- 6. the proposed crossover for the existing house accessed off Anzac Road does not comply with Australian Standard AS/NZS 2890.1:2004 as the proposed crossover would be located within 6 metres of the kerb tangent point;
7. the proposed crossover for the existing house accessed off Federation Street does not have the required clearance from the existing power pole …;
8. the car bays for the proposed dwelling are 2.5 metres wide and not the required 2.7 metres wide."
Planning framework
10 The subject land is zoned "Residential" with a density coding of R30 in the respondent's Town Planning Scheme No 1 (TPS 1). TPS 1 incorporates the Residential Design Codes of Western Australia 2002 (Codes) by reference. Table 1 of the Codes prescribes for R30 a 270 square metre minimum and a 300 square metre average site area per dwelling.
11 TPS 1 includes cl 20 "Special Application of the Residential Planning Codes" which states, relevantly:
"1. The permitted site density per hectare under the Residential Planning Codes for any land is to be determined by reference to the Residential Planning Codes density number, as illustrated on the Scheme Map for that land.
2. Subject to compliance with the procedures set out in the Residential Planning Codes for notifying affected owners and occupiers, the Council may grant an increase in the permitted dwelling density by up to 50% if
...
(b) the proposed development conserves or enhances an existing dwelling or existing dwellings worthy of retention;
…
(Page 6)
- 3. Where the Council allows an increase in the permitted dwelling density, the standard and provisions of the Residential Planning Codes which relate to that higher density are to apply.
…
5. The Council will consider variations to Residential Planning Codes where it considers that acceptable levels of residential amenity can be achieved."
12 The Respondent has adopted a "Planning and Building Policy Manual". This includes Policy No 3.1.1 "Mount Hawthorn Precinct Scheme Map 1" which includes the subject land. The policy states for the residential area:
"All residential development is to comply with the Polices relating to Residential Design Guidelines and Residential Development."
13 Policy No 3.2.1 "Local Character" includes:
"Aim
For new development to achieve harmony with the local environment while asserting its contemporary nature.
Performance Criteria
New development to meet these criteria:
P1 Complement the streetscape setting of adjoining and nearby buildings.
P2 Be compatible with the desired dominant development in the existing street, in terms of scale, street rhythm, front setbacks, wall heights, fences, and front garden treatment, as identified in the relevant Residential Locality Statement.
P3 Be compatible with the desired architectural features, including colours and materials, of buildings in the streetscape.
(Page 7)
- P4 Demonstrate genuine architectural expression, either as an extension of the existing predominant style, or of contemporary design."
14 Policy No 3.3.4 "Anzac Locality Plan 4" states:
"New contemporary developments are encouraged provided that the design responds to the established character. The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location and orientation."
15 Mr Meggitt, a planner who appeared for the respondent, said that the respondent had commenced a review of TPS 1 and submitted that no decision should be made to increase housing densities prior to the review being completed.
16 It was established in the examination of Mr Meggitt that surveys of residents had been conducted and the replies consolidated into a report. That report is now being considered, but it might be at least another 18 months, or even longer, before any draft replacement town planning scheme is prepared. The Tribunal does not consider that the scheme review process is sufficiently advanced to cause this matter to be considered other than in the light of the planning controls and policies now in place.
Discussion
17 The applicant included as an attachment to his witness statement a set of plans of the development dated 21 September 2005 that included amendments to overcome the concerns of the respondent raised in the refusal about vehicle crossovers and width of car bays. The applicant said the plans were prepared to demonstrate how those issues could be addressed, were the Tribunal minded to approve the development.
18 The changes to the plans included removal of the parking bay and associated crossover from the Anzac Road frontage, the provision of an additional bay at the rear of the existing house, and widening the parking bays for the proposed house to 2.7 metres. The applicant also produced a letter from Western Power dated 15 September 2005 quoting the cost of moving one metre northward the electricity pole in Federation Street near the crossover to the parking spaces at the rear of the existing house. The proposed development is otherwise essentially the same as that refused by the respondent.
(Page 8)
19 There is no dispute that the subject land, at 541 square metres, does not have sufficient area to meet the Codes' R30 requirements for average and minimum site area per dwelling for two dwellings. The site is 9.8% less than the 600 square metres total area required. The respondent used this as a reason for refusal.
20 Mr Meggitt said that, while the respondent was not opposed to all infill development, to promote greater certainty for landowners and potential developers, the respondent had selected localities within which higher density would be considered if an existing dwelling were retained, and these were identified in the zoning maps for TPS 1 by split coding. The subject land or Anzac Locality did not have split codings, and so the proposed development was said by Mr Meggitt to be inconsistent with the intent of TPS 1.
21 It was also the respondent's submission that there was no specific evidence that the existing dwelling had any particular heritage value such to make it worthy of retention and to therefore warrant the development being granted the density bonus under cl 20(2)(b). Mr Meggitt said he believed cl 20 may be invoked where an existing house had specific heritage characteristics and is under threat, but that was not the case here. He pointed out that the house does not appear in the respondent's Municipal Heritage Inventory and has not been identified in any other way as having particular cultural heritage significance. Where the protection of a heritage place is the issue, then a concession might be granted, but a concession should not be granted merely because a place is of 'some heritage value'. It was the respondent's concern that, as the existing house was an unremarkable example of a house type common in the locality, any approval would be used by others as a basis for applying for a density bonus in conflict with the R Coding allocated to the locality.
22 The respondent submitted a written statement from Mrs S Wells, who lives next door to the subject land at 198 Anzac Road. Mrs Wells' submission did not raise issues directly pertinent to her being next door to the proposed development. Her comments were criticism of the applicant and of the reports on the development prepared by the professional staff of the respondent. Mrs Wells asked that the consistent decisions of the respondent be supported. The applicant pointed out that Mrs Wells has no qualifications or experience in planning or heritage, and argued that the submission should therefore be given little weight. Mrs Wells' submission has been noted as that of a layperson resident in the locality.
(Page 9)
23 Mr Ken Adam, an experienced town planner and architect, was called by the applicant. Mr Adam acknowledged the split coding used by the respondent, but argued that cl 20 applied throughout the whole of the area of TPS 1, and the absence of split coding is therefore irrelevant.
24 Mr Adam also acknowledged the shortfall in area for an R30 coding, but pointed out the applicant was relying on cl 20(2)(b) of TPS 1 for approval of the development. Under cl 20(2)(b), if it is determined that the existing house is worthy of retention, the density bonus may be applied, and in this case, the shortfall was 9.2%, much less than the 50% that might be allowed.
25 It was the applicant's case that cl 20 does not require that an existing dwelling be under threat of demolition before the density bonus can be granted. Mr Adam's evidence was that the house is worthy of retention in its own right, saying:
"The house is an intact example of a particular house type. That it is not included on the Council's Municipal Heritage Inventory is explained by the fact that it is not a rare housing type, or one that is under threat of survival, at least not yet. Its retention is, in my opinion, desirable while not being absolutely essential on heritage grounds."
26 The applicant put into evidence a letter dated 5 July 2004 from Mr Michael Broderick, an architect, whose comments included:
"The place is typical and is not rare. The repetition of the place and many similar houses give Mt Hawthorn its character.
…
I believe the house is of low to moderate significance, but that its contribution to the streetscape and overall precinct is of moderate to important significance.
…
The place in its location has considerable heritage value. The house is sound, well built and spacious. In an era where we are conscious of recycling it can, with minor modifications, offer excellent accommodation for the foreseeable future. Further, I would strongly recommend that the house be retained and that
(Page 10)
- any bonus or concession due to its retention be offered to the proprietor for the rear development."
27 Mr Adam referred to Policy No 3.2.1 "Local Character", in which the intent is "the encouragement where appropriate to restore existing residential buildings where the original style has been altered", saying that, in this instance, much of the original character remains. He also referred to the statement in Policy No 3.3.4 "Anzac Locality Plan 4" which says: "The retention or restoration of existing houses which contribute to the overall character of the locality will be encouraged". He pointed out that this will be the result of the proposed development.
28 The parties provided photographs of neighbouring houses in Anzac Road. These confirmed that the existing house is one of a number of interwar houses of similar type. The respondent argued that this illustrates that the house is not unique with no inherently special qualities and so does not warrant special consideration. The applicant emphasised the contribution the house made to the streetscape as one of a group of houses of similar character.
29 Federation Street was also shown to be a street of mostly interwar bungalows in photographs provided by the parties. The houses are typically on lots with a frontage of 12.2 metres. The proposed new grouped dwelling will have a frontage of 16.6 metres. Directly opposite the subject land, fronting Federation Street, is a house of more recent construction, built in what was the backyard of the house on that corner of Anzac Road.
30 The applicant provided a coloured computer generated elevation with the proposed development imposed. It was Mr Adam's submission that the proposed grouped dwelling is consistent with the policies of the respondent, particularly Policy No 3.2.1 "Local Character" and Policy No 3.3.4 "Anzac Locality Plan 4", as it would be of a scale, form and materials to match the existing house and, in his opinion, would make a positive improvement to the streetscape, particularly in comparison to the existing fibre cement fence along that boundary. Mr Meggitt described the infill house as "inoffensive".
Conclusion
31 The Tribunal agrees with Mr Adam that the absence of split codings does not preclude the application of cl 20(2)(b) should it be considered appropriate for the development proposed.
(Page 11)
32 It was said by both parties, and the Tribunal agrees, that the fact that an existing dwelling is to be retained in a proposed development is not sufficient, of itself, to secure a density bonus under cl 20(2)(b) of TPS 1. It is necessary to establish that the existing house is worthy of retention when the proposed development is examined in the context of neighbouring streetscapes and in the light of the policies that the respondent has in place to guide deliberations.
33 Both parties used the word "heritage" loosely in their submissions. While it is clear from the evidence that the existing house facing Anzac Road is not a candidate for inclusion on any heritage register, the Tribunal has formed the view that, in the circumstances of this particular development proposal, there is merit in retaining the house. As expressed by Mr Adam, and as illustrated in the photographs, the house is worthy of retention as an example of a sound interwar house which is an inherent part of a streetscape of houses of similar age and character.
34 In respect of the respondent's concern that other owners of similar houses might view any approval as precedent for them to follow, there was nothing revealed that there is necessarily the physical disposition of existing houses or a climate for such extensive development of this type that it should give rise to concern of a widespread threat to the density and character of the locality. The Tribunal is of the view that any such application can be made and can be determined on its merits.
35 The new infill house facing Federation Street also has to be looked at in the context of neighbouring development and in the light of the respondent's policies. The applicant has provided plans, an illustration and photographs that demonstrate that the proposed house will not adversely intrude into the Federation Street streetscape. That is, it can be considered that it will "achieve harmony with the local environment" as required by the aim and performance criteria of Policy No 3.2.1 "Local Character", because of the scale, form and materials.
36 From the evidence presented in this matter, particularly the combination of the retention of the existing house in the streetscape and the form of the infill development proposed, the Tribunal has decided to grant conditional approval for the proposed development.
Consistency in decisions
37 As indicated above, an application for a similar development on the subject land was the subject of an unsuccessful appeal to the former Town
(Page 12)
- Planning Appeal Tribunal in 2004. In considering the instant application, the Tribunal was very mindful of the following observation:
"Inconsistency has the potential of bringing the decision making process into disrepute because it suggests that the decision is arbitrary, rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notions of justice": Dilatte & Anor v MacTiernan [2002] WACSA 100 at [61].
"It is the view of this Tribunal that there might well be a basis for determining that the existing house on the subject land is worthy of retention as part of the streetscape. What is necessary is that a development proposal be put forward that fully demonstrates this. Such a proposal would also need to demonstrate that the density bonus is then earned by a development that addresses the policy guidelines of the Respondent."
39 In the instant application for review, the applicant submitted different from the earlier proposal, revised plans, sketches that relate the proposed development to neighbouring buildings, and photographs to illustrate the streetscapes. There also appeared as an expert witness, an experienced architect and planner who is familiar with the planning of the locality and the respondent's policies.
40 The Tribunal is satisfied that, in this matter, the inadequacies of the earlier proposal before that Tribunal have been addressed and there has been put before the Tribunal additional evidence that provides a sound basis for forming the conclusion that has been reached.
41 The applicant drew attention to the report to the respondent from the planning officer, in the minutes dated 9 August 2005, recommending conditional approval of the proposed development. The applicant and Mr Adam also made reference to the consistent recommendations in favour of the proposed development made to the respondent by the respondent's heritage officer.
(Page 13)
42 It must be said, of course, that the respondent did not agree with granting the density bonus, and said that no weight should be given to these officer recommendations.
43 The Tribunal is conscious that the officers only provide recommendations. It is also aware, however, that they are the recommendations of professionally trained officers employed for their expertise.
44 It is accepted without reservation that the decision on the development application remains that of the respondent. There is, however, in the review of this matter, scope to consider the advice before the respondent in its deliberations on the development. The advice is in no way determinative of the matter, but it is of assistance to the Tribunal as a matter to which regard ought to be had in the consideration of the application and the discretion to be exercised.
Conditions
45 As instructed by the Tribunal, the respondent provided a schedule of draft conditions, without prejudice to its position, for consideration should the Tribunal be minded to uphold the application. The applicant objected to condition (iv), which refers to the clearance of a diagram of survey for the proposed lots. There was no application for any form of subdivision before the Tribunal and the decision in this matter is not for any form of subdivision. Any subdivision of the land would have to be the subject of a separate application to the Western Australian Planning Commission and would be treated on its merits. The suggested condition (iv) is considered unnecessary.
Orders
46 The application for approval of the proposed development, as set out in the plans dated 21 September 2005, is allowed subject to the following conditions:
1. a detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Anzac Road and Federation Street verge adjacent to the subject property, shall be submitted to the Town and approved prior to issue of a building licence. All such works shall be undertaken prior to first occupation of the development, and maintained thereafter by the owner(s)/occupiers(s);
(Page 14)
- 2. all external features, such as television antennas (of a nonstandard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), shall be designed integrally with the building, and shall be located so as not to be visually obtrusive;
3. prior to the issue of a building licence, the owner(s) shall enter into a legal agreement with and to the satisfaction of the Town of Vincent, which is secured by a caveat on the certificate(s) of title of the subject land, prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent, undertaking to conserve the existing dwelling on the site. All costs associated with this condition shall be borne by the applicant/owner(s);
4. if the power pole on the Federation Street verge adjacent to the subject dwelling is required to be relocated to accommodate compliant vehicular crossovers, the power pole shall be relocated at the owner's cost prior to the first occupation of the development; and
5. any new street/front wall, fence and gate between the Anzac Road boundary and Federation Street boundary and the main building, including along the side boundaries within this front setback, shall comply with the following:
(a) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
(b) decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;
(c) the maximum width, depth and diameter of posts and piers being 360 millimetres;
(d) the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and
(Page 15)
- the section above this solid portion being visually permeable, with a minimum 50 transparency; and
47 (e) the provision of a minimum 1.5 metres by 1.5 metres truncation where wall, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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