TOMASSO and CITY OF STIRLING
[2009] WASAT 245
•14 DECEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TOMASSO and CITY OF STIRLING [2009] WASAT 245
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 14 DECEMBER 2009
FILE NO/S: DR 248 of 2009
BETWEEN: ANTHONY AND JOSEPHINE TOMASSO
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Application for approval to commence development - Grouped dwellings - Residential Design Codes of Western Australia (2008)(Codes) - Acceptable development provisions of the Codes - Performance criteria of the Codes - Open space - Outdoor living area - Common area driveway - Dry court area
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.3.5
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 26, s 241(1)(a), s 250(1)
Residential Design Codes of Western Australia (2008), cl 1.2, cl 2.1, cl 2.4, cl 6.4, cl 6.4.1, cl 6.4.1 A1, cl 6.4.2 A2, Table 1
Result:
The application for review was dismissed
Category: B
Representation:
Counsel:
Applicant: No appearance
Respondent: No appearance
Solicitors:
Applicant: No appearance
Respondent: No appearance
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL
Summary of Tribunal's decision
The application for review was lodged against a decision of the City of Stirling to refuse the construction of three grouped dwellings at Lot 270 (No 69) Fernhurst Crescent, Balga. The essence of the refusal was in relation to the amount of open space proposed for Unit 2, having regard to the provisions of the Residential Design Codes of Western Australia (2008).
The Tribunal examined the respective position of the parties, the background to the proposal, the relevant legislative and policy provisions and matters relating to the Acceptable Development provisions and Performance Criteria of the Residential Design Codes of Western Australia (2008) for open space.
The Tribunal determined that although the applicants had attempted to find a balanced design solution on the subject land that was in accord with the Residential Design Codes of Western Australia (2008), it had led to a significant compromise on open space for Unit 2, which was unacceptable to the Tribunal.
The application for review was dismissed.
Introduction
The application for review, dated 22 June 2009, was lodged with the State Administrative Tribunal (Tribunal) by Mr Anthony and Mrs Josephine Tomasso (applicants) against a decision of the City of Stirling (respondent or City) on 25 May 2009 to refuse an application for approval to commence development, dated 16 October 2008, for three grouped dwellings at No 69 (Lot 270) Fernhurst Crescent, Balga (subject land).
The application for review was lodged under the provisions of s 250(1) of the Planning and Development Act 2005 (WA) (PD Act).
The notice of refusal was issued on 25 May 2009 and relayed to the applicants with the following reason for refusal:
Pursuant to Clause 1.3.5.1(g) of District Planning Scheme No 2, the application is refused for the following reason:
1.The proposed development does not satisfy the provisions of the Residential Design Codes Clause 6.4.1 Open space for proposed Unit 2.
…
Subject land and proposed development
The subject land can be described as No 69 (Lot 270) Fernhurst Crescent, Balga, on Plan 8687 and is shown on Certificate of Title 522/123A.
The subject land is located on the north side of Fernhurst Crescent. It is a relatively level rectangular site with an area of 728 square metres, 18.10 metre frontage and a depth of 40.23 metres. There is a single storey residence on the land with an adjacent metal carport on its east side, and a fibro and metal shed positioned in the north-east corner of the property.
The immediate locality is one of change, with an original single storey housing stock gradually being replaced with new single homes or grouped dwellings.
The proposed development consists of a single storey residence (Unit 1) on 210.91 square metres closest to Fernhurst Crescent. There is also a single storey residence (Unit 2) centrally located on 200.03 square metres and a two storey rear residence (Unit 3) on 200.00 square metres. Access to Unit 1 is via Fernhurst Crescent whilst access to Unit 2 and Unit 3 will be via a common area driveway positioned on the east side of the development.
Legislative and policy framework
The subject land is zoned 'urban' in the Metropolitan Region Scheme and 'Residential R40' in the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme).
Of relevance to this matter, in addition to DPS 2, are the Residential Design Codes of Western Australia (2008) (Codes).
As the Codes have been prepared as a State Planning policy, the Tribunal is required to have regard to them under the provisions of s 241(1)(a) of the PD Act.
Respondent's position
The position of the respondent is outlined in its statement of issues, facts and contentions dated 28 August 2009. The respondent broadly contends:
1)The proposed development does not meet the Acceptable Development provisions of cl 6.4.1, 'open space provision' of the Codes as:
•The open space provision for Unit 2 is 33.48 % of the site in lieu of the required 45.00% in accordance with Table 1 of the Codes.
2)The proposed development does not meet the Performance Criteria within cl 6.4.1 of the Codes as:
•The open space provision for Unit 2 is not flexible and is limited to the outdoor living area (courtyard);
•The proposed outdoor living area for Unit 2 is 20.31 square metres which is the minimum requirement for areas coded R40. The applicants' plan illustrates the location of the dry court and other services which reduce the outdoor living area, and subsequently usable open space;
•The development has the potential to house up to 6 persons which equates to less than 4 square metres of open space per person;
•Most sites in the local area at R40 have the potential to develop as three grouped dwellings. The open space requirement will be important to the amenity of the residents as development increases in the local area and it is imperative to protect the provision of open space to ensure that residents have adequate and flexible areas of open space to suit their needs;
•There is no open space around the building, save for the common property area (driveway); and
•The proposed courtyard is enclosed on three sides. If, in the future, residents apply to cover the courtyard area, which is common, the covered area cannot be constituted as open space as the Codes define open space of a covered area to be unenclosed on at least two sides.
3)The proposed development can be redesigned to achieve the Performance Criteria within cl 6.4.1 of the Codes such that adequate open space is provided without the need to utilise the proposed outdoor living area for a dry court area and other services by providing open space around the building.
Applicants' position
The position of the applicants is outlined in a statement of issues, facts and contentions dated 23 September 2009, in the following broad terms:
1)The respondent's statement that the proposed development (Unit 2) does not meet the Performance Criteria within cl 6.4.1 is not agreed for the following reasons:
•The open space provision for Unit 2 is not limited to the outdoor living area and in any case, the outdoor living area is sufficiently large to be flexible in use.
•The use of the outdoor living area for Unit 2 would not be unduly restricted by services in that space. In any case, its services and layout are no different to that of Unit 1, which complies with the Acceptable Development provisions of cl 6.4.1 of the Codes.
•The dwelling is designed to comfortably house four persons, which is statistically significantly above the average for this type of dwelling. The open space provided by the courtyard is consistent with both market demand and the acceptable development standard of the Codes for an outdoor living area, and there are no conceivable future services that would reduce the amount of open space in the courtyard.
•The open space adjoining the dwelling at the garage entry, driveway and courtyard is adequate to complement the dwelling in the context of the shared driveway approach.
•Whether a future resident may wish to cover the courtyard, and the respondent's response to such a request, are not relevant to this application.
2)The respondent's condition that the proposed development could be redesigned to achieve the performance criteria in cl 6.4.1 for open space provision is irrelevant to the issue of this application.
Additional argument was provided earlier by Mr Ken Adam, a qualified architect and town planner, in a letter dated 18 March 2009 to the City of Stirling from KA Adam and Associates. The letter addressed the relevant Performance Criteria in this way:
(i)Unit 2 can only be seen from the common driveway. The garage is set back from the rest of the building and a narrow strip of landscaping is provided between the remainder of the building and the common driveway. This open space is minimal, but sufficient to provide a setting that complements the building.
(ii)The public streetscape is not affected one way or another by the amount or disposition of open space for Unit 2. The private streetscape - if the common driveway can be so described - is served by the open space strip and set back referred to above.
(iii)The needs of residents in Unit 2, …, are to provide a reasonable outlook and privacy for habitable rooms and a usable area of open space. All three bedrooms of Unit 2 look into open space. That open space is sufficient, in the case of Bedroom 2, to provide a reasonable measure of acoustic and visual privacy from the driveway. The living areas of Unit 2 are directly and fully connected to a private courtyard measuring 5.25 x 4.0m. This area meets the Acceptable Development provision 6.4.2.A2 for an outdoor living area of 20m2 with a minimum dimension of 4m. It not only meets the need for outdoor living, but also provides an attractive and private outlook for Bedrooms 1 and 3.
Mr Adam also included two further observations:
-first, that the layout of Unit 2 is skilfully handled, so that the open space provided is extremely effectively placed, and none is wasted; and
-second, the Acceptable Development provision for open space, especially, is necessarily very conservative, simply because it has to allow for the inefficient design and unusable space created by minimum setbacks in most cases. For example, had Unit 2 been separated from the adjacent Units 1 and 3 by a 1m setback, the setback areas total[l]ing at least 25m2 would have been counted as open space but would have contributed nothing to any of the three Performance Criteria. Similarly, if the garage area of over 33m2 had been unroofed[,] it would have counted as open space but, again, contributed nothing to the needs of the occupiers or to public amenity.
Planning issue
The principal planning issue is:
Would the open space provided for Unit 2 of the development meet the relevant Performance Criteria of the Codes, and be consistent with the relevant 'use and development' provisions of DPS 2?
Assessment of proposal
Background
An application for 'approval to commence development', dated 16 October 2008, was lodged with the City on 17 October 2008.
On 10 January 2009, the City wrote to the applicants requesting amendments to the plans. These amendments included the following:
3.In accordance with the Residential Design Codes Part 6 Clause 6.4.1 open space provision, in areas coded R40 in accordance with Table 1 the open space provision is 45%. The proposed open space provision for unit 2 is 33.48% in lieu [of] 45%. Please amend plans accordingly.
The City refused the application on 25 May 2009 for the reason outlined at [7] above.
An application for review was lodged with the Tribunal on 22 June 2009 and attempts to mediate an outcome on 20 July 2009 and 3 August 2009 were unsuccessful.
On 3 August 2009, the Tribunal ordered that the matter was to be determined on the documents.
Legislation and policy provisions
City of Stirling District Planning Scheme No 2
The Scheme provisions most relevant to this matter are covered by cl 1.3.5, 'Use and Development of Land'. These provisions include the following:
1.3.5.1Application for Approval to Commence Development and Council's approval
(a)Subject to Clauses 1.3.5.1 (b) and (c) all use or development of land zoned or reserved under this Scheme requires the prior approval of the Council.
…
(f)The local government in considering an application for planning approval is to have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development the subject of the application: [Amd 514]
…
(iii)any approved statement of planning policy of the Commission;
…
(v)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
…
(xxvii)any other planning consideration the local government considers relevant.
State Planning Policy 3.1, 'Residential Design Codes (Variation 1)'
This policy is titled Residential Design Codes (Variation 1) and was prepared under the provisions of s 26 of the PD Act by the Commission.
The purpose of the Codes is described under cl 1.2.
1.2Purpose of the RCodes
The purpose of the R-Codes is to provide a comprehensive basis for the control through local government, of residential development throughout Western Australia.
The matter of planning approval is addressed in this way:
2.1Planning Approval
2.1.2The planning application should provide details regarding the manner in which the requirements of the Codes, being part of the Scheme are satisfied.
The discretionary provisions are outlined in cl 2.4.
2.4Discretionary decisions
In relation to the Codes, discretionary decisions shall be decisions made by the Council with respect to any aspect of a proposed development that varies from the relevant acceptable development provision or a provision of a local planning policy.
The general site requirements are outlined in Table 1 and for an area coded R40, the minimum site area per dwelling for a single house or grouped dwellings is 200 square metres, with an average of 220 square metres. The open space requirements are a minimum of 45% of the site with a minimum outdoor living area of 20 square metres.
Under cl 6.4, 'Open Space Requirements', the overall 'objective' is:
To ensure that private and communal open space is set aside and landscaped to provide for attractive streetscapes, attractive settings to complement buildings, privacy, direct sun and the recreational needs of residents.
The relevant Performance Criteria under cl 6.4 are:
6.4.1Open space provision
P1Sufficient open space around buildings
·to complement the building;
·to allow attractive streetscapes;
·to suit the future needs of residents, having regard to the style and density of the dwelling.
6.4.2Outdoor living areas
P 2.1An outdoor living area capable of use in conjunction with a habitable room of the dwelling, and if possible, open to winter sun.
P 2.2An outdoor area that takes the best advantage of the northern aspect of the site.
The relevant Acceptable Development provisions under cl 6.4 are:
6.4.1Open space provision
A1Open space provided in accordance with Table 1 and design elements 6.2 and 6.3. The site of the grouped dwelling, for the purpose of calculating the open space requirement, shall include the area allocated for the exclusive use of that dwelling and the proportionate share of any associated common property.
Outdoor living areas
A2An outdoor living area to be provided:
·in accordance with Table 1;
·behind the street setback area;
·directly accessible from a habitable room of the dwelling;
·with a minimum length and width dimension of 4 metres, except in areas coded R-1C where the minimum dimension may be 3 metres; and
·and to have at least two-thirds of the required area without permanent roof cover.
The matter of the Acceptable Development Provisions
Although it is clear from a letter dated 16 October 2008 accompanying the original development application to Council that the applicants wished the open space provision to be assessed under the Performance Criteria, reference was still made to the Acceptable Development provisions and the related open space requirements of Table 1.
To that end, the applicants acknowledged that the open space requirement of 45% of the site had not been met for Unit 2 with only 33.48% open space provided. They agreed that this equates to a 27.54 square metre open space shortfall.
The respondent acknowledged the open space shortfall for Unit 2 in [15(1)] above.
The applicants did go on to argue however, that Unit 1 provides 4.40 square metres extra open space and Unit 3 provides 23.55 square metres extra open space.
The matter of the Performance Criteria
In a letter dated 16 October 2008 to the City, the applicants address the relevant Performance Criteria for open space as outlined in [32] above, in this way:
Sufficient open space is provided around the buildings: -
-The additional 27.95 m2 open space provided to Units 1 and 3 complements the 27.54 m2 shortfall in open space to Unit 2.
-The streetscape is not affected in any way, as Unit 2 is not directly visible from the street frontage. The overall site ambience will be enhanced with the variety of unit sizes and variation in scale.
-The future needs of the residents are not affected in any way by the reduction in open space to Unit 2. The unit has still been provided with the required outdoor living area and all required setbacks.
The position of the respondent is outlined at [15(2)] and [15(3)] above, and essentially concludes that Unit 2 can be redesigned to achieve the Performance Criteria such that adequate open space is provided without the need to utilise the proposed outdoor living area for a dry court area and other services by providing open space around the building.
Conclusions
The application for review was lodged against a decision of the City to refuse an application to construct three grouped dwellings on the subject land. The essence of the refusal was that the open space provided for proposed Unit 2 did not satisfy cl 6.4.1 of the Codes.
In undertaking this review, the Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions and matters relating to the Acceptable Development provisions and Performance Criteria of the Codes for open space.
Although it is common ground between the parties that the amount of open space for proposed Unit 2 does not meet the Acceptable Development provisions at cl 6.4.1 A1 of the Codes, they both refer to the Acceptable Development provisions at cl 6.4.2 A2,'Outdoor Living Areas' to support their respective arguments.
As outlined in the Codes, the Acceptable Development provisions illustrate one way of meeting the associated Performance Criteria and can be used by the decisionmaking authority (including the Tribunal) to provide useful guidance if the matter is to be considered under the associated Performance Criteria.
From the perspective of the Tribunal, the matter must be assessed under the relevant Performance Criteria as this was the clear intent of the applicants in their original development application to the City on 16 October 2008, but more importantly, as the basis of their application for review by the Tribunal.
The position of the applicants is that the open space for Unit 2 is not limited to the outdoor living area and that this latter space would not be unduly restricted by services such as a folding clothes line or retractable clothes line. Also, that the outdoor living area is sufficient for the future needs of residents in Unit 2 and there are no conceivable future services that would reduce its usable size.
The applicants also argue that the public streetscape would not be adversely affected by the amount or disposition of open space for Unit 2, and if Unit 2 was set back from Unit 1 and Unit 3 by a one metre setback, or the proposed garage was unroofed in order to qualify as open space that neither of these two actions would contribute anything to the three Performance Criteria, or the needs of the occupiers of Unit 2.
The position of the respondent is that the amount of open space for Unit 2 is essentially limited to the outdoor living area and is affected by the location of the dry court (clothes line) and other services which would reduce its usefulness. Also, that the three bedroom unit has the potential to accommodate six persons, which equates to less than 4 square metres of open space per person.
The respondent concludes that the proposed development can be redesigned without the need to utilise the outdoor living area for a dry court area and other services by providing open space around the building.
With respect to the matter of a dry court area, the General Notes on the plan submitted by the applicants, and shown as Drawing No SK02.(Rev 2), dated 21 July 2009, state:
CLOTHES DRYING:
Unit 1 and Unit 2 will be provided with an electric clothes dryer in the laundry, wall mounted above the washing machine, and ceiling mounted exhaust fan for venting. A folding clothes line or retractable clothes line can also be located in the courtyard, as shown. …
That is to say an external clothes line is not an essential element of the design for Unit 2.
On the question of a one metre setback between Unit 2 and Unit 1 and Unit 3, or an unroofed garage in order to qualify as open space, these are not alternative design solutions that have been put to the Tribunal for consideration at this time. Accordingly, they do not form part of this review.
In terms of the specific Performance Criteria outlined at [32] above, the Tribunal would concede that although the provision of open space for Unit 2 as positioned at the rear of the dwelling would not detract from the streetscape it could, even without a clothes line, still provide a relatively restricted open space area for the residents of a three bedroom unit. It certainly does not provide the open space amenity for residents as contemplated for Unit 1 and Unit 3, and the argument that an oversupply of open space for these units would somehow compensate for the loss of open space for Unit 2 is not persuasive.
The performance criterion that there should be sufficient open space around a building to complement the building has only been marginally addressed with the small amount of open space adjoined to Unit 2 outside the proposed kitchen, porch and bedroom 2.
An important point is that if the proposed Unit 2 was to be assessed under the Acceptable Development provisions for open space, the amount of open space provided would be deficient by some 27.5 square metres. In other words, the open space provision would be significantly less than that contemplated by the Codes under cl 6.4.1 A1.
Although these open space provisions are only a guide to the Tribunal when considering the matter under the Performance Criteria, the open space deficiency has not been able to be addressed by way of an innovative design solution. The restricted area of open space has, in the main, simply been positioned at the rear of the dwelling.
However, in fairness to the applicants, they have attempted to find a balanced design solution for three grouped dwellings on a 728 square metre site that tries to accord with the many provisions of the Codes. But this has led to a significant compromise on the amount of open space for Unit 2, as outlined in [52], [53] and [55] above which is unacceptable to the Tribunal under the Performance Criteria of the Codes.
Order
The application for review is dismissed.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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