TILBROOK and SHIRE OF BROOME - [2013] WASAT 163

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TILBROOK and SHIRE OF BROOME [2013] WASAT 163

MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 3 SEPTEMBER 2013

DELIVERED : 4 OCTOBER 2013

FILE NO/S: DR 370 of 2012

BETWEEN: JOHN BEVAN TILBROOK
PAULINE ELIZABETH TILBROOK
JOHN EDWIN TILBROOK
Applicants
AND
SHIRE OF BROOME
Respondent

Catchwords:

Town planning - Tourist development - Lot within coastal reserve - Setback from road alignment - Slope of land - Flood prone land - Weight to be given to draft planning scheme Classification of building under Building Code of Australia 1990 - State Coastal Policy - Objectives of Mixed Use zone - Maximum wall height - Primary street setback - 'Broomestyle' architecture - Typology of building - Amenity of locality - Impacts on amenity

Legislation:

Building Code of Australia 1990
Draft Shire of Broome Local Planning Scheme No. 6
Planning and Development Act 2005 (WA)
Shire of Broome Town Planning Scheme No. 4 District Zoning Scheme, cl 4.2, cl 4.3, cl 4.16, cl 5.4, cl 5.10, cl 5.10.2, cl 5.10.3, cl 10.2, Pt 4 Sch 1

Result:

Application for review dismissed
Decision of respondent affirmed

Summary of Tribunal's decision:

A development application seeking approval for a two storey residential development at No 33 (Lot 451) Hamersley Road, Broome and lodged with the respondent in August 2012 was refused by the Shire of Broome on 4 October 2012. This refusal resulted in an application for review to the Tribunal later the same month.
A second application was subsequently considered by the respondent in December 2013. This application, which was similar in form to the initial application, was for a tourist development comprising a two storey development primarily keyed as two apartments/units with the flexibility to be combined into a single accommodation unit. It was refused by the respondent on 18 December 2013.
The subject site is located on the eastern side of Hamersley Road and faces onto Roebuck Bay. It is atypical, both as an isolated lot surrounded on three sides by the coastal park running along Roebuck Bay, and due to an extensive setback from the road alignment of Hamersley Street.
The issues before the Tribunal in this review were, first, those relating to the use of the subject land and, secondly, those associated with the form of the development. The latter related to questions of maximum wall heights, the setback to the primary street and the requirement in the planning scheme for 'Broomestyle' architecture.
In regard to the use of the land, the Tribunal concluded that as the Shire of Broome Town Planning Scheme No 4 'Tourist Development' was a 'P' use in the Mixed Use zone, it was permitted provided that the development complied with the relevant development standards and the requirements of the Shire of Broome Town Planning Scheme No 4.
In regard to the form of the development, the Tribunal found that the development infringed a number of the provisions of the Shire of Broome Town Planning Scheme No 4 and the cumulative impacts of the proposed facility undermined its effective integration into the context and compromised the quality and characteristics of the locality.
For these reasons, the application for review was dismissed and the decision of respondent affirmed.

Category: B

Representation:

Counsel:

Applicants: Ms L Rowley
Respondent: Mr J Algeri (Acting as Agent)

Solicitors:

Applicants: Norton Rose Fulbright Australia
Respondent: Algeri Planning & Appeals (Town Planners)

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

Nicholls and Western Australian Planning Commission [2005] WASAT 40
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 31 August 2012 the applicants lodged an application with the Shire of Broome (respondent, Shire or Council) seeking approval for a two storey residential development at No 33 (Lot 451) Hamersley Road, Broome (site or subject land). This application was refused by the respondent on 4 October 2012 for the following reason:
The proposed development does not meet the provisions of the Shire of Broome Town Planning Scheme No. 4.
This refusal resulted in an application for review to the Tribunal on 26 October 2012.
Subsequent to this application, and as a consequence of further information provided by the applicants, the respondent considered an application for 'Tourist Development' on 18 December 2013. This application was refused for the following reasons:
1.The proposal is considered to be 'Residential Development' and is therefore in conflict with the Shire of Broome Town Planning Scheme No. 4 District Zoning Scheme (TPS 4 or Scheme), cl 4.16.4.1 of the Mixed Use zone, as residential within a Mixed Use zone is required to contain a commercial component.
2.The rear setback of the development has not been justified and the proposal has not fully considered the interface to the foreshore in terms of the provisions of State Planning Policy 2.6 State Coastal Planning (SPP 2.6), where regard should be given to the environmental capability of the site.
3.The proposal is contrary to cl 4.16.5.1 of TPS 4 in relation to the height of development that must be limited to a wall height of 6.5 metres and a building height of 10.5 metres.
The current review is in response to the decision by the respondent made on 18 December 2013.

Site and locality

The review site is located on the eastern side of Hamersley Road, between Anne Street and Louis Street, and faces onto Roebuck Bay.
The subject site is atypical for a number of reasons. It is an isolated lot surrounded on three sides by the coastal park running along Roebuck Bay. The nearest developments on the southeastern side of Hamersley Street are a diving establishment and associated residential dwelling located approximately 85 metres to the northeast and a number of residential dwellings approximately 350 metres to the southwest.
The portion of Hamersley Road adjacent to the site is located on the northwestern side of a substantial road reserve, with the result that the site is separated from the road pavement of Hamersley Road by some 23 metres.
The distance from the road pavement in the context of the local topography, which slopes southeast towards Roebuck Bay, means that the site is between 2.7 and 3.9 metres below the Hamersley Street road pavement. The fall across the lot is approximately 1.4 metres from the road lot boundary to the rear lot boundary.
The site is rectangular in shape with an area of 669 square metres. It measures approximately 30.18 metres in width and approximately 22.13 metres in depth, meaning that the longer side of the lot faces the street. With the exception of three trees, the site is vacant. There are a number of trees located within the road reserve in the immediate vicinity of the subject lot.
To the north west of the subject site across Hamersley Street is Bedford Memorial Park, a triangular parks and recreation reserve bounded by Hamersley Street, Weld Street and Anne Street.
Hamersley Street is a well used street which, together with Carnarvon Street, provides access from Chinatown to Town Beach.
The contextual landscape character of the subject land is one of large tracts of open space, mature trees, and lawns accommodating built forms that altogether make up an urban landscape that is perceived as being very informal and low density. The foreshore area itself is perceived as one linear open space that affords broad open views over the mangroves of Roebuck Bay.
Finally, the subject site falls within a 'Flood Prone Land' special control area.

Planning framework

The subject site is zoned Mixed Use under the provisions of TPS 4. The site was previously zoned Residential (R10) and was rezoned to the current zoning by Amendment No 40 which was gazetted on 24 July 2009.
TPS 4 at cl 4.16.1.1 sets out the aim of the Mixed Use zone as follows:
The aim of the zone is to provide for residential, tourist, offices, commercial showrooms and other compatible uses which complement the mixed use character of the locality
The objectives for the Mixed Use zone are set out in cl 4.16.1.2:
(a)encourage a range of land uses, particularly showroom/bulky retail which support the functions of the nearby town centre of Chinatown, but which do not detract from Chinatown as the major retail and town centre function; and
(b)have regard to Broome Local Planning Strategy when determining applications for land use and development within the Mixed Use zone[; and]
(c)ensure all development reflects Broomestyle Architecture within an open landscaped site and streetscape which is compatible with a tourist accommodation environment.
Under the provisions of the Zoning Table included in Pt 4 of TPS 4, 'Tourist Development' is a 'P' use in the Mixed Use zone; that is a use permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme.
The site and development requirements for the Mixed Use zone are established by cl 4.16 of TPS 4 and include the following:
4.16.2.1Setbacks for development in the Mixed Use zone shall have regard to the following:
(a) Primary and Secondary Street 3.0 metres
(b)Side and Rear Nil, with the exception of residential development, which shall be set back in accordance with the Residential Design Codes of WA.
4.16.2.2.Landscaping may be required by Council to be provided and maintained abutting the boundary of all street frontages to a minimum depth of 3 metres from the boundary.
The provisions relating specifically to Tourist Development are set out in cl 4.16.3 as follows:
4.16.3.2.Tourist Development may be developed to a maximum density of the R40 Residential Design Code and Council will refer to the relevant policy when considering such proposals.
4.16.3.3.The density for holiday accommodation units such as motel, hotel, hostel or guest house developments is at the discretion of the Council.
Residential development in the Mixed Use zone is restricted by cl 4.16.4.1 of TPS 4, which states:
New residential development is not permitted unless located above or behind existing or new commercial development on-site.
TPS 4 also establishes, by cl 4.16.5, specific height limits which apply to the subject site:
4.16.5.1The height of development on Lot 451 Hamersley Street is to be limited to a maximum wall height of 6.5 metres and building height of 10.5 metres.
Clause 5.4 of TPS 4 establishes discretionary powers to vary the site and development requirements of the Scheme, and sets out the tests to be applied in exercising such discretion as follows:
(a)approval of the proposed development would be appropriate having regard to the criteria set out in clause 10.2; and
(b)the noncompliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality.
Clause 5.10 of TPS 4 requires that 'all buildings within the Scheme area shall be compatible with the 'Broome architectural style' which reflects a low scale of building bulk and has regard for local climatic conditions and traditional architecture'. Clause 5.10.2 of TPS 4 also requires that:
Features such as a pitched roof, single and multiple hipped roof, gables, verandahs, shutters, lattice features, colourbond [sic] roof, and predominant wall materials of colourbond [sic] or timber should be incorporated into all buildings. These features should represent the predominant aspects of the building.
In addition, cl 5.10.3 of TPS 4 requires that:
Materials of concrete, brick, zincalume or rendered walls are required to be painted and/or treated to Council's satisfaction to ensure compatibility with the Broome architectural style.
Clause 10.2 of TPS 4 sets out the matters to be considered by Council, or by the Tribunal, in considering an application for planning approval. These include:
(a)the aims and provisions of this Scheme and any other relevant town planning Scheme(s) operating within the district;
…
(c)the requirements of orderly and proper planning including any relevant proposed new town planning Scheme that has been adopted by the Council pursuant to the Town Planning Regulations 1967;
(d)any approved Statement of Planning Policy of the Commission;
…
(k)the preservation of the amenity of the locality;
(l)the relationship of the proposal to development on adjoining land or on other land in the locality;
(m)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
…
(q)whether adequate provision has been made for access by disabled persons;
(r)whether adequate provision has been made for the landscaping of the land to which the planning application relates and whether any trees or other vegetation on the land should be preserved;
…
(w)the comments and submissions received from the representative Aboriginal group and people on matters of heritage and cultural importance and Native Title;
…
(z)any other matter which in the opinion of the Council has planning relevance.
Schedule 1 of TPS 4 sets out the definitions applying in the Scheme. 'Tourist Development' is defined as follows:
tourist development means any land or buildings used for the overnight or holiday accommodation of patrons in self contained units and/or shared accommodation and may include incidental on-site recreational facilities such as golf, swimming, bike riding, tennis, bowls, fishing, restaurants, shops, function rooms and entertainment facilities, administration offices, caretaker facilities. It includes dormitory style accommodation, hostel/backpackers, tourist lodging/guest houses, motel and hotel.
The same schedule defines amenity as follows:
amenity means the quality and the conditions and characteristics of a locality which contribute to its pleasantness and harmony and its better enjoyment.
In regard to relevant SPP 2.6, cl 5.4(ii) addresses the issue of building height for development within 300 metres of the horizontal shoreline datum as follows:
Maximum height limits should be specified as part of controls outlined in a local planning scheme and/or structure plan, in order to achieve outcomes which respond to the desired character, built form and amenity of the locality.
In addition, cl 5.2(v) of SPP 2.6 establishes principles for development and settlement which include the following:
Ensure that land use and development, including roads, adjacent to the coast is sited and designed to complement and enhance the coastal environment in terms of its visual, amenity, social and ecological values.

Proposed development

The application the subject of this review constitutes a two storey tourist development primarily keyed as two apartments/units with the flexibility to be combined into a single accommodation unit.
Each of the two apartments/units in the building includes an entry, living area, meals area, kitchen, laundry, bedroom and bathroom on the ground floor. In addition, externally, a verandah, alfresco area and swimming pool are provided to each unit. On the first floor each unit has a further two bedrooms, two bathrooms, a study and a kitchen with external verandah, alfresco area and deck. The two units share a two car garage and an upstairs verandah facing Hamersley Street.
The building is effectively constructed on a retained plinth which appears to vary in height from approximately 400 millimetres above natural ground level (NGL) at the front boundary to approximately 1.5 millimetres at the rear boundary. The finished floor level is set approximate 350 to 400 millimetres above the level of the plinth at the street boundary.
The overall roof height varies between approximately 9.8 and 10.2 metres above NGL, with wall heights varying from approximately 7.2 metres to approximately 7.9 metres above NGL. The setbacks are 1.702 metres on the northeast side, 1.688 metres on the southwest side, 3.240 metres on the rear boundary, with front setback varying from 1.0 (the garage) to 3.5 metres.
The building has a series of pitched roofs, masonry walls, verandahs with concrete floors and steel columns, and timber decked areas. On the elevation facing Hamersley Street, the centrally placed garage, set back 1 metre from the boundary, has 'rubble rock' feature walls on either side and a roller door facing the street, while the verandah above has a gable.

The issues

The respondent set out its issues in the statement of issues, facts and contentions (SIFC) as follows:
1.Whether the proposal can be considered a 'tourist development' in terms of the use, design and layout of the proposal having regard to:
i)     Whether the maximum number of selfcontained apartments/units are considered to be two (2) or four (4);
ii)    The basis on which the apartments/units will be used as 'tourist development' pursuant to the definition under the Respondent's Town Planning Scheme No 4 ('TPS4') as opposed to other forms of private, residential development, and:
iii)     The typology of the built form.
2.Whether the overall height and resulting building bulk of the development is appropriate having regard to:
i)     The wall height of the proposal being in excess of 6.5 metres given the express provision of clause 4.16.5.1 of TPS4 which specifically limits the height of any development on the subject land.
ii)    The objectives of clause 5.4 of the Draft Coastal Planning Policy 2.6 (public consultation draft February 2012) in respect to the design and height of development in a coastal environment.
3.Whether the proposed development adequately reflects 'Broomestyle' Architecture on all predominant aspects of the building, not just the front elevation, consistent with clause 5.10.2 of TPS 4.
4.Whether the overall use, siting, height, and design of the proposed development is appropriate having regard to the location of the site and the mixed use zoning of the land with specific regard to the following:
i)     Whether a 1.0 metre front setback is appropriate given that clause 4.16.2.1 (a) of TPS 4 requires 3.0 metres;
ii)    Whether the design of the proposal has an appropriate relationship to the adjoining land consistent with clause 10.2(l) of TPS 4;
iii)     Whether the landscaping proposed is appropriate having regard to the interface with the adjoining reserves as identified by clauses 5.11.1 and [cl] 10.2(r) of TPS 4;
iv)     In regard to clause 10.2(m) of TPS 4, whether the recontouring of a portion of the street verge for access to the site is an appropriate design solution; and,
v)    Given the location and topography of the site, whether satisfactory on-site stormwater disposal can be achieved.
The applicants in their SIFC set out its issues as follows:
1.Whether the proposal for a Tourist Development on the subject land is one which may be approved within a Mixed Use Zone.
2.Whether the proposed built form of the proposal is reasonable and appropriate given the zoning, physical constraints and topography of the subject land.
3.Whether the proposed development substantially accords with Broomestyle architecture.
4.Given the zoning of the subject land and the objectives of the Mixed Use Zone, whether the Respondent's concerns regarding the interrelationship of the proposal with the reserve and the coast should dominate the assessment of the proposal or is just one element of the assessment.
5.Whether rather than a refusal of the proposal, the more appropriate response from the Respondent is an approval conditioned to meet its express concerns.

An attempt by the parties to narrow the issues did not result in any agreement.
In regard to the respondent's issue with reference to the number of apartments/units (issue 1(ii)), it was confirmed by the applicants at the hearing that the application for which approval was sought on review was for two, not four, selfcontained apartments/units.
In regard to the applicants' final issue (issue 5), as this was a hearing de novo, this issue falls away.
The respondent raised the issue of the Draft Shire of Broome Local Planning Scheme No. 6 (LPS 6) which it argued was a seriouslyentertained planning proposal. This was challenged by the applicants. The evidence provided to the Tribunal was that while LPS 6 had been advertised, the respondent was yet to consider any submissions received. In addition, evidence at the hearing suggested that the R coding on the lot the subject of this review in the advertised draft was an error, and that the omission of a height limit for the subject lot was an oversight the respondent intended to remedy in due course.
Mr Gregory Howard Rowe, expert planning witness, gave evidence on the potential timeframes for the approval of LPS 6. Given this evidence, the Tribunal is of the view that LPS 6 does not meet either the 'certainty' or the 'imminent' tests set out in [59] of Nicholls and Western Australian Planning Commission [2005] WASAT 40 and should therefore be accorded little weight.
In addition, the respondent raised an issue in regard to the classification of the development under the Building Code of Australia 1990, and the Tribunal received evidence on this matter. If in fact the question of such classification could constitute a potential project risk requiring later amendments, it seems unfortunate that it was not dealt with earlier in the project development process. However, in regard to the matters before the Tribunal in this review, this is a matter to be dealt with at the time an application for a building licence is made and therefore has no substantive bearing on the questions in this review.
Without seeking to restrict the ambit of issues raised by the parties, the Tribunal, in dealing with the matters before it, divided the issues into two substantive components:
1)Those issues relating to the use of the subject land; that is, the question of a 'tourist development' use in the Mixed Use zone (respondent's issue 1(ii) and applicants' issue 1).
2)Those issues relating to the physical form of the proposal (respondent's issues 1(iii), 2, 3 and 4 and applicants' issues 2, 3 and 4). These issues essentially fall into the questions of heights and setbacks and the requirement for 'Broomestyle' architecture.
In taking this approach, the Tribunal is cognisant of the argument advanced by the applicants that, in considering the latter issues, they need to be seen in the context of the atypical conditions of the subject land and the Mixed Use zoning established for the land in TPS 4; that is, within the totality of the planning framework for the site.

The use of the subject land

It was agreed between the parties that the application the subject of this review was for 'tourist development'.
The respondent raised concerns that the typology of the building appeared that of a private residence and not of a tourist accommodation facility. While the Tribunal is sympathetic to the concerns expressed in the evidence of Ms Susan Thomas, an expert witness called by the respondent in regard to the typology of the proposed building, the current planning provisions, particularly in regard to the blanket application of 'Broomestyle' architecture, constitute a rather blunt instrument which tends to weaken the entirely defensible aspiration that a building form should explain its purpose to a less than central issue.
The respondent did not, however, challenge the 'tourist development' designation in the hearing or suggest that the development should be considered under any other use class established by cl 4 2 of TPS 4 or dealt with as a use not listed under cl 4.3 of the Scheme.
'Tourist Development' is a 'P' use in the Mixed Use zone and is permitted providing the use complies with the relevant development standards and the requirements of the Scheme. In this context, the use issue then goes to either the compliance of the form of the development with relevant development standards and the requirements of the Scheme which is addressed below, or to any appropriate conditions to ensure its use is consistent with the parameters established by the definition of 'tourist development' set out in Sch 1 of TPS 4.

The form of the development

It was common ground between the parties that the proposed development did not comply with the height provisions established for this specific lot by virtue of cl 4.16.5 of TPS 4 in regard to wall heights.
It was further agreed that the proposed development did not comply with the primary street setback to which the respondent, and the Tribunal on review, was to have regard under the provisions of cl 4.16.2 of TPS 4. Whether this was in fact a requirement, what criteria is to be used in applying this provision (should it be applied) and the extent of noncompliance were in dispute between the parties.
The parties were also at variance as to the compliance of the proposed development with the 'Broomestyle' architecture requirements established under the provisions of cl 5.10 of TPS 4.
Clause 5.4 of TPS 4 provides discretion for the decisionmaker to vary the site and development requirements of the Scheme, including the provisions of cl 4.16.5, cl 4.16.2 and cl 5.10. Clause 5.4.2 sets out the tests to be applied to any exercise of such discretion as follows:
(a)approval of the proposed development would be appropriate having regard to the criteria set out in clause 10.2; and
(b)the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality.
In the current context, the criteria established by cl 5.4.2(b) of TPS 4 above can be subsumed in the assessment under cl 5.4.2(b), as the effect on occupiers or inhabitants of the locality was not in question and the development of land in the locality is specifically addressed by cl 10.2(l) of the Scheme.
In regard to the application of the considerations of cl 10.2 of TPS 4, it was agreed between the expert planning witnesses that the relevant provisions were cl 10.2(a), cl 10.2(d) and cl 10.2(k). The Tribunal will deal with each of these in turn.

The aims of the Scheme (cl 10.2(a))

In the current context, the relevant aims and provisions of the Scheme are:
…
1.6(g)To provide a range of Tourist facilities and accommodation.
…
1.6(j)To safeguard and enhance the character and amenity of the built and natural environment of the Scheme Area.
Compliance with the first is not in contention; the second goes to the issue of whether discretion should be exercised in approving the proposed development which, in turn, requires an assessment against matters to be considered under the other relevant subclauses of cl 10.2 of TPS 4.

State Planning Policy (cl 10.2 (d))

Clause 5.4 of SPP 2.6, requires that maximum height limits should be specified as part of controls outlined in a local planning scheme. TPS 4 complies in this regard by establishing, at cl 4.16.5, specific height limits for the land the subject of this review.
The requirements established by cl 5.2(v) of SPP 2.6 involve ensuring 'that land use and development, including roads, adjacent to the coast is sited and designed to complement and enhance the coastal environment in terms of its visual, amenity, social and ecological values'.
Social and ecological values were not raised by either party and the Tribunal accepts that these are not substantive issues in the context of the application under review. Given the integral nature of the visual values in establishing the character of the locality these matters will be addressed below in regard to the application of cl 10.2(k) of TPS 4.

The preservation of the amenity of the locality (cl 10.2(k))

In St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318, the Tribunal at paragraph 39 argued that in order to assess the impacts of the proposed development on the amenity of the locality, it was necessary, given the definition of 'amenity' in the Scheme, for the Tribunal to undertake an objective enquiry as to the character of the area that represents that state of amenity.
TPS 4 defines amenity as follows:
amenity means the quality and the conditions and characteristics of a locality which contribute to its pleasantness and harmony and its better enjoyment.
The criteria to be applied in such an enquiry was addressed by the Tribunal in Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346 which cited the following test for assessing amenity articulated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, at [304]:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the matter in which the proposed use will affect the existing amenity and the degree of impact on the locality.

The existing amenity

The landscape expert witness of the applicants, Mr Howard Charles Mitchell, described the character of the area as follows:
Although an urban landscape, the character of the area is dominated by mature trees and the expansive views over the mangroves obtained through the trees from Hamersley Street. The broad open space and road reserves are rough grassed with occasional plantings of individual trees including a line of palms. A detracting element of the area is the overhead power and telecom lines and poles that run in the road verge the length of Hamersley Street.
To the west of the subject land is a large open space, Bedford Memorial Park. This park consists of open maintained lawns punctuated with a variety of trees including large Figs, Boabs and Palms. In the centre of the park there is a war memorial.
The broad open spaces that are the context for the subject lot are generally level, grassed with planted established sporadic trees of diverse species.
The nearest buildings are some distance away from the subject land. A diving facility/residence is approximately 85 metres to the northeast and a large hotel is located approximately 100 metres to the west on the other side of the park, while the nearest buildings to the south are considerably further away.

Impact on amenity

In this context, as Mr Mitchell concedes, any development will be a prominent element within the contextual landscape as it will be an obvious built element within the adjacent open space.
While not formally part of the current proposal, Mr Mitchell's evidence included a proposed landscape treatment which, while incorporating planting within the road reserve and therefore requiring support from the Shire, effectively addressed, in the Tribunal's view, the landscape issues associated with the proposal.
The substantive questions at issue are therefore the relaxations sought for the front setback and wall heights, and the potential impacts of such relaxations in terms of overall impact of the development in its clearly atypical contextual setting.
The current configuration where the garage, roofs, verandahs and decking all impinge on the suggested setback, particularly in the context of a roller shutter door to the carport, and the location of boat parking in the front setback behind a fence comprising masonry piers and pool fencing infill, creates a frontage of a generally uncompromisingly urban character.
In terms of the wall heights all the walls of the current proposal exceed the 6.5 metres established by cl 4.16.5.1 of TPS 4. The walls vary from 7.2 metres above NGL to 8.2 metres above NGL; these figures represent a required relaxation of between 10% and 26%. Given the extent of the relaxations, the proposed wall heights would have an impact on the perceived bulk and scale of the development in the context of the broad open spaces which characterise the locality.
A final question was whether the proposed development complied with 'Broome architectural style' set out in cl 5.10 of TPS 4. The respondent acknowledged that the more salient aspects of 'Broomestyle' architecture had been integrated as design elements in the proposal. The exception was the fact that the majority of the external walls were proposed to be of masonry construction. Clause 5.10.2 of TPS 4 requires that '… predominant wall materials of colorbond or timber should be incorporated into all buildings'. Accepting the evidence of Mr Mitchell in terms of a potential landscape strategy for the development, the finishes on the side elevations of the building would still be clearly perceivable both to users of the adjacent reserve and to people travelling by vehicle along Hamersley Street.

Degree of impact

Mr Rowe, the expert planning witness for the applicants, stressed that the statutory requirement was simply to have regard to the setback requirement, and argued that one would not be able to perceive a relaxation to the front setback, given the distance from Hamersley Road.
While the Tribunal accepts this submission, the proposed relaxation would prevent the Shire, or the Tribunal in its place, from exercising its discretion to require landscaping under cl 4.16.2.2 of TPS 4. The inclusion of such landscaping would, in the Tribunal's view, be clearly visible from the road and would assist in softening a street elevation which, in its current form, does not fulfil the objective for the Mixed Use zone established by cl 4.16.2(c) of TPS 4, which seeks development 'within an open landscaped site and streetscape'.
In regard to the wall height, the Tribunal does not accept the arguments put forward by the applicants in regard to the need to avoid tidal surge, or those of Mr Steven Kesich, who gave evidence on its behalf, that height restrictions are very much aimed at the typical flat lot, and not the oddity which is the subject site. In regard to the former, the minimum floor level required is 5.7 metres AHD; the proposed floor level is 7.30 metres AHD.
In regard to the latter, the height control established by cl 4.16.5.1 of TPS 4 was introduced into the Scheme by Amendment 40 in 2009. The Scheme Amendment Report approved by the Minister sets out in some detail the reasons for the inclusion of this provision:
Lot 451 enjoys a prominent location being on a 'tourist drive' from Chinatown to Town Beach and due to its position any development will partially block one's view of Roebuck Bay from Robinson [P]ark (Bedford Park) and Hamersley Street. It is considered that the bulk afforded to the site by height allowances by Clause 5.9.2 would be inappropriate in this location. The scale would be obtrusive in an otherwise low scale landscape. It is considered appropriate to allow the entire site to be built to a scale consistent with that afforded to the rest of Broome, being 6.5 metre wall height and 10.5 metre building height.
This suggests particularly careful consideration was given by the Shire to the very particular characteristics of the subject site in setting the height limits, a point accepted by Mr Rowe, the planning expert called by the applicants.
A final consideration was the acceptability of noncompliance with 'Broome architectural style' requirements set out in cl 5.10 of TPS 4. The requirement set out in cl 5.10 of the Scheme is unequivocal, and the extent of relaxation sought would effectively undermine the intent of the provision.
It was, however, the cumulative impacts of the front setback condition, the height of the walls and the extent of masonry construction of the proposed facility which would, in the view of the Tribunal, undermine the effective integration of the proposed facility into the broad open spaces of the locality.

Conclusion

The site the subject of the proposed development in this review is clearly unique, both as an isolated lot surrounded on three sides by the coastal park running along Roebuck Bay, and due to the extensive setback from the road alignment of Hamersley Street.
These conditions and the relevant planning provisions in place inevitably create some tension between the defensible requirement to effectively develop the site and the need to sensitively integrate the proposed facility into the open landscaped, and very public, condition and character of the locality.
Much of the evidence in the review focused on the details of the specific relaxations sought, and there was clear evidence that in a number of regards the proposed facility did not comply with either the spirit or the letter of the relevant provisions of the Scheme.
It is, however, entirely conceivable that a development which met the height provisions of the Scheme and no evidence was provided that this was not possible had a less urban street frontage, potentially had a more articulated and open built form, and more closely complied with the material requirements of the Scheme could effectively address these issues.
However, the currently proposed development needs to be considered within the totality of the planning framework for the site and, in the view of the Tribunal, the cumulative impacts of the proposed facility undermined its effective integration into the context, and compromised the quality and characteristics of the locality.
For this reason the application for review was dismissed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER