Veale and Midland Redevelopment Authority - [2009] WASAT 162

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: VEALE and MIDLAND REDEVELOPMENT AUTHORITY [2009] WASAT 162

MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 29 JULY 2009

DELIVERED : 24 AUGUST 2009

FILE NO/S: DR 62 of 2009

BETWEEN: IAN LESLIE VEALE
Applicant
AND
MIDLAND REDEVELOPMENT AUTHORITY
Respondent

Catchwords:

Town planning - Development - Retaining wall - Fill - Residential Design Codes of Western Australia (2008) site works requirements - Woodbridge Conservation Precinct Design Guidelines - Amenity impacts on the neighbours - Amenity impacts on the streetscape - Preservation of natural topography - Substantively altered landscape - Character of the streetscape - Minimise earthwork - Potential overlooking - Solar access - Perception of being 'hemmed in' - Fence within front setback area - The Codes front wall and fences requirements - Discordant visual impact on streetscape

Legislation:

Midland Redevelopment Act 1999 (WA), s 52(1)
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2008), cl 6.2.5, cl 6.6, cl 6.9
State Administrative Tribunal Act 2004 (WA), s 31(1)

Result:

The application for review is dismissed for the following reasons:
(a) The proposed development does not meet the objective of cl 6.6 of the Residential Design Codes of Western Australia (2008)
(b) The proposed development infringes the requirements of both the Woodbridge Conservation Precinct Design Guidelines and the Performance Criteria of cl 6.2.5 of the Residential Design Codes of Western Australia (2008)

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr D Mitchell (Representative)

Solicitors:

Applicant: Self-represented
Respondent: Midland Redevelopment Authority

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In November of 2008, Mr Ian Leslie Veale sought approval from the Midland Redevelopment Authority to construct a retaining wall and fill a section of the land adjacent to the western boundary at No 20 (Lot 5) Bayley Street, Woodbridge.
This application was refused by the Authority in January of 2009 and Mr Veale sought a review of this decision by the Tribunal. Following mediation and the submission of an alternative proposal to the Authority pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the Authority rejected the revised proposal.
The issues were agreed between the parties as comprising:
•Whether the proposed retaining wall and fill was contrary to cl 6.6 of the Residential Design Codes of Western Australia (2008) 'Site works requirements' and the Woodbridge Conservation Precinct Design Guidelines?
•Whether the proposed retaining wall and fill will have adverse amenity impacts on the neighbours?
•Whether the proposed retaining wall and fill will have adverse amenity impacts on the streetscape?
In regard to the amenity impacts on the neighbours, the Tribunal found that the potential for additional overlooking of No 24 Bayley Street was marginal and in the view of the Tribunal not unacceptable. In regard to overshadowing the adjoining property at No 22 Bayley Street, the Tribunal found that while the boundary fence would impact on this lot, particularly in the midmorning period, such impacts were not in the circumstances of this case unacceptable. However, the proposed fence will substantially increase the sense of enclosure within, and diminish the current fairly open character of, both the pool area, and more particularly, the enclosed alfresco area. These impacts would unduly infringe the reasonable expectations of the adjoining owner. Given the adverse impacts the fence would have on the amenity of the adjoining property, the Tribunal found that the proposed development did not meet the objective of cl 6.6 of the Residential Design Codes of Western Australia (2008).
In terms of streetscape impacts, the Tribunal found that the proposed fill did not unacceptably infringe the performance criteria of cl 6.6 of the Residential Design Codes of Western Australia (2008). Furthermore, in assessing the proposal against the Woodbridge Conservation Precinct Design Guidelines the Tribunal found that the proposed fill was minimal, and was proposed in a substantively altered landscape.
However, with regard to the fence within the front setback area the Tribunal found that the proposed development did not comply with either cl 5.6.1(a) of the Woodbridge Conservation Precinct Design Guidelines or the performance criteria of cl 6.2.5 of the Residential Design Codes of Western Australia (2008).
For these reasons, and given the unacceptable amenity impacts on the adjoining property at 22 Bayley Street, the application for review was dismissed.

Background

On 14 November 2008, Mr Ian Leslie Veale (applicant) lodged an application with the Midland Redevelopment Authority (Authority or respondent) seeking approval for the construction of a retaining wall and fill at No 20 (Lot 5) Bayley Street, Woodbridge (subject site or lot). This application was referred by the Authority to the owners of two properties having common boundaries with the subject site. Both of these neighbours registered objections to the proposed development.
On the 12 January 2009, the Authority, under the delegated authority of the Chief Executive Authority, refused to grant approval to the application. The applicant subsequently lodged an application for review with the State Administrative Tribunal on the 8 February 2009.
Following mediation, an alternative proposal was put forward by the applicant and pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent was invited by the Tribunal to consider this proposal. On 27 May 2009, the Board of the Authority considered a report on the revised proposal and rejected this proposal.

Locality and subject site

The subject site is located at No 20 (Lot 5) Bayley Street, Woodbridge and falls within the Woodbridge North Conservation Precinct. The lot comprises an area of approximately 3,690 square metres located on the northern side of the street. The lot is located towards the western end of Bayley Street and has a frontage of approximately 30 metres to that street. Bayley Street runs east/west approximately 240 metres north of Great Eastern Highway. The street has a cul de sac at its western end and is accessed at its eastern end via Harper Street from Great Eastern Highway.
The lot layout on Bayley Street generally comprises lots with relatively narrow frontages to the street. These frontages are somewhat larger on the southern side than on the northern side of the street. However, this pattern does not apply to the lots at the eastern end of the street. On the southern side of this section of the street there were two original lots with substantially larger frontages to the street; on the northern side the subject land is atypical in that it widens out to approximately 61 metres on the northern boundary and has a recent four lot development on the eastern side of the southern portion of the land.
The subject land has an existing dwelling located well back from the street and at a level above the street. The dwelling is accessed by a driveway along the eastern boundary. This dwelling is screened from the street by extensive vegetation comprising mature trees and shrubs located towards the building. Importantly, the subject land between the dwelling and the street effectively comprises three 'platforms'. The eastern section, comprising the driveway, has a level relating to the existing street and rises up to the dwelling, the central and largest 'platform' is more level and somewhat below the level of the street, while a smaller section along the western boundary is lower again.
The lots on the northern side of Bayley Street to the east of the subject land have residences which are generally set well forward on their lots as opposed to the existing dwelling on the subject site which is set well back on the lot. The general pattern of limited street setbacks is repeated on the southern side of Bayley Street. However, at the western end of the street on the southern side is a recent four-lot development where only one dwelling has been constructed to date.
To the west of the subject land on the northern side of the street are four dwellings accessed from a north/south extension to the western end of Bayley Street. The residence at No 22 (Lot 3) Bayley Street (Lot 3) is orientated to the west facing the north/south access leg. Thus, the rear boundary of this property abuts the western boundary of the subject site.
The dwelling on Lot 3 is 4.65 metres from the western boundary and comprises a two storey structure with a single storey front verandah setback approximately 6 metres from the rear eastern boundary. However, within this setback are two single storey structures. To the north of the ground floor footprint of the residence and accessed through a covered carport is a masonry shed which abuts the western boundary; adjacent to the southeast portion of the residence is an enclosed alfresco area setback approximately 2.1 metres off the eastern boundary.
The configuration of the single storey structures on the lot establish a rectangular courtyard between the shed and the alfresco area which is occupied by a small pool, a narrow access way between the alfresco area and the boundary wall, and a courtyard area to the south of the alfresco area enclosed by a brick screen wall the southern leg of which is located approximately 2 metres off the southern boundary. A small metal shed is located centrally in this area to the south of the alfresco area.
The existing residence at No 24 (Lot 2) Bayley Street (Lot 2) takes access from the northern extremity of the north/south leg of Bayley Street and is angled on the lot to face the southwest. This dwelling comprises a two storey structure with a double storey verandah along the western side and a raised timber entertainment deck on the eastern side facing the common boundary with the subject site.
More generally, while the eastern end of Bayley Street is characterised by the retention of a substantial proportion of the original residences the western end of the street is undergoing a transition represented by the four new constructed dwellings on the northern side and the four-lot development now occurring on the southern side of the street.

The proposed development

The proposed development comprises the construction of a 1.2 metre retaining wall along the section of the western boundary of the subject land comprising the common boundary with Lot 3, the placement of fill against this wall to a height of approximately 1 metre above the current ground level, the erection of a light timber fence projecting 1.5 metres above the retaining wall, and the establishment of an area of planting along the eastern side of the proposed timber fence.
At the southern end, it is proposed that the wall and fence will extend to the front boundary. At the northern end, the wall and fence will terminate adjacent to the northern boundary of Lot 3 although the fill will be battered down to meet the existing ground level at the end of the retaining wall.
The area to be filled is located above a 3 metre sewer easement which runs north-south through the subject land parallel and adjacent to the common boundary with Lot 3.
The applicant submits that the fill is necessary to provide the owners of the subject land with pedestrian access down the steep slope to the lower boundary fence.

Issues for determination

The issues were agreed between the parties as comprising:
•Whether the proposed retaining wall and fill was contrary to cl 6.6 of the Residential Design Codes of Western Australia (2008) (Codes) 'Site works requirements' and the Woodbridge Conservation Precinct Design Guidelines?
•Whether the proposed retaining wall and fill will have adverse amenity impacts on the neighbours?
•Whether the proposed retaining wall and fill will have adverse amenity impacts on the streetscape?
The Tribunal shall deal with each of these matters in turn.

The Codes 'Site works requirements' and the Woodbridge Conservation Precinct Design Guidelines

In regard to the site works requirements of the Codes it was agreed between the parties that the proposed development did not meet the Acceptable Development provisions set out in cl 6.6 and should be assessed against the Performance Criteria of the clause, which reads as follows:
Development that retains the visual impression of the natural level of a site, as seen from the street or other public place, or from an adjoining property.
The objective of cl 6.6 of the Codes is [1] 'To preserve the sense of the natural topography of the site and locality with a view to the protection of streetscape and the amenity of adjoining properties'.
In regard to the provisions of the Woodbridge Conservation Precinct Design Guidelines, it was agreed between the parties that the following clauses were relevant in assessing the proposed development:
5.6Development within Front/Street Setback Areas
…
5.6.1Performance Criteria
(a)Development (i.e. fences, gates, driveways, paths and gardens) within the front/street setback area shall enhance the character of the streetscape and not have a discordant visual impact
…
5.7Earthworks
5.7.1Performance Criteria (Earthworks)
To minimize earthwork so as to protect the traditional landscape of Woodbridge.
5.7.2Acceptable Development Provisions (Earthworks)
(a)Earthworks (filling or cutting) shall be minimised so as to protect the traditional landscape.

Whether the proposed retaining wall and fill will have adverse amenity impacts on the neighbours?

At the hearing, it was agreed the impacts of the development on the adjoining property at Lot 2 was limited to the potential overlooking of the outdoor decked entertaining area and grassed area on the eastern side of the lot having a common boundary with the subject site.
From the viewing, it was clear that the existing levels already provide considerable potential for overlooking from the subject site to the outdoor decked entertaining area and grassed area at Lot 2. While the proposed development would provide limited additional potential for overlooking, any such potential would be mediated by the fact that the fill would be graded down to the existing ground level against the northern end of the retaining wall while the fence on top of the proposed wall would extend the full length of the wall. This meant it would not be possible to stand at the new level (AHD 8.0) immediately adjacent to the fence of Lot 2 and any viewing of the entertainment deck would occur from a greater distance than the area of the subject site from which potential overlooking already occurs.
In the context of the existing overlooking, the potential for additional overlooking associated with the proposed development was marginal and in the view of the Tribunal not unacceptable.
The potential impacts of the proposed development on Lot 3 are more substantive. It was, however, agreed that should the proposed light timber fence and landscaping be erected any potential overlooking of Lot 3 from the area of fill at the subject site would be unlikely to occur.
In light of this agreement and the fact that the drawings submitted (particularly the section) clearly indicate the proposed light timber fence, this fence should logically form an integral component of the application before the Tribunal for review.
However, given the potential question of whether planning consent is in fact required for the erection of such a boundary fence, even if the fence were not formally part of the application for review, both the intention and ability of the applicant to erect such a fence requires that the impact of such a fence on the adjoining property is assessed.
In this context, while the erection of the fence may well resolve issues of overlooking it would also generate impacts in terms of solar access and, according to the respondent, a perception of being 'hemmed in' in the courtyard area of the adjoining property.
The existing boundary wall to Lot 3, based on the photographic evidence provided, appears to be approximately 1,524 millimetres above the FFL level of the residence, and approximately 1,656 millimetres above the level of the courtyard. The evidence suggests that the proposed light timber fence will project approximately 788 millimetres (comprising eight brick courses on the photographs submitted in evidence plus 100 millimetres above white render wall noted in the applicant's witness statement) above this wall generating an overall height of approximately 2.31 metres above the FFL level of the residence, or approximately 2.44 metres above the courtyard. The top of the light timber fence is approximately 1.64 metres above the proposed level of fill on the subject land.
It was agreed that the establishment of the proposed light timber fence on the retaining wall would have an impact on solar access to the pool and outdoor living areas to the south of the pool. It was, however, also agreed between the parties that such impacts would not infringe the acceptable development provisions for solar access established by cl 6.9 of the Codes.
Given the western boundary of the subject site runs on a north/south alignment, any impacts on solar access would be limited to morning hours. It was also accepted that the existing trees on the subject site already cause overshadowing of Lot 3 in the early morning. Thus, the impact of the construction of the timber fence would cause additional overshadowing during the latter part of the morning ceasing at noon. The areas of major impact would be the pool area and the enclosed alfresco area. It should be noted that the shading impacts of the existing garage on the pool area are more substantive than those of the proposed fence. In addition, a sailcloth has also been erected over the pool area presumably to provide additional shade.
With regard to overshadowing, the Tribunal found that while the boundary fence would clearly impact on the adjoining lot, particularly in the midmorning period, such impacts were not in the circumstances of this case unacceptable.
The respondent also argued that the height of the fence would create the perception of being 'hemmed in' in the courtyard areas on the eastern side of Lot 3. The applicant, in response, however, put the case that these courtyard areas were already enclosed on the northern side by the garage and on the western side by the existing double storey residence and single storey enclosed alfresco dining area. In this context, he submitted the proposed fence would create a more consistent pattern of enclosure and may well be considered an improvement in amenity.
In assessing this question, the relevant question is therefore whether the proposal meets the objective of cl 6.6 of the Codes to protect the amenity of the adjoining property.
The increased height of the fence from 1.65 metres to approximately 2.44 metres above the courtyard spaces of Lot 3 over a length of approximately 11.45 metres will substantially increase the sense of enclosure within, and diminish the current fairly open character of, both the pool area, and more particularly the enclosed alfresco area. The impacts on the courtyard area to the south of the alfresco area are less problematic as this area appears to be less actively used as an outdoor living area.
In addition, the extent and height of the proposed fence unduly infringe the reasonable expectations of the adjoining owner. In planning the residence at Lot 3, the expectation would have been that the adjoining owner could reasonably erect a boundary fence of 1.8 metres above the existing ground level. A fence of over 2.4 metres is well beyond such an expectation. Given the impacts of the fence on the amenity of the outdoor living areas and enclosed alfresco area of the adjoining property, the Tribunal finds that the proposed development does not meet the objective of cl 6.6 of the Codes.

Whether the proposed retaining wall and fill will have adverse amenity impacts on the streetscape?

While the parties agreed that the proposal should be assessed against the provisions of the Woodbridge Conservation Precinct Design Guidelines such a contention could be open to challenge.
At cl 6.1.7, the General Principles for the Local Planning Policy - Woodbridge Conservation Precincts states the following:
…
The landscape features of Woodbridge (the established street trees, lawned verges, footpaths and established gardens in the southern precinct and the public open space areas in the northern precinct) have been identified as elements which contribute to the Precincts' cultural significance.
...
This clause appears to imply that the application of the provisions regarding the 'traditional landscape' in the northern precinct would be limited to public open space areas. More generally, while the statement of significance set out in the policy make reference to 'gardens' it does not specifically address 'traditional landscapes'. In this context, it may be inappropriate to apply the provisions of cl 5.7 of the Woodbridge Conservation Precinct Design Guidelines.
However, should such an interpretation not apply, the proposal would require assessment against the Woodbridge Conservation Precinct Design Guidelines.
The Performance Criteria of cl 5.6.1(a) of the Woodbridge Conservation Precinct Design Guidelines requires that development (including gardens) within the front setback shall enhance the character of the streetscape and not have a discordant visual impact.
In regard to this criterion, the extent of fill within the front setback is limited and would be well below the level of the front verge. In the context of substantial earthworks in the immediate locality associated with the development of the four residences immediately to the west of the subject site, the construction of the sewer through the subject site and more recently, the earthworks associated with the four lot development currently taking place across the road, the Tribunal finds that the proposed fill is minimal, and is occurring in a substantively altered landscape.
The Performance Criteria of cl 5.7.2(a) Acceptable Development Provision (Earthworks) of the Woodbridge Conservation Precinct Design Guidelines, requires that earthworks (filling or cutting) shall be minimized so as to protect the traditional landscape.
In regard to the filling along the western boundary behind the street setback line, the fact that the filling will only occur over a very limited area of the subject land and that this area is, and will remain, well below street level suggests the impacts will be limited. Importantly such impacts need to be seen in the context of an 'altered' landscape. In this context, the Tribunal finds that the proposed fill would not breach the relevant provisions of the Woodbridge Conservation Precinct Design Guidelines.
Further to the provisions of the guidelines, cl 6.6 of the Codes requires that the development retains the visual impression of the natural level of the site as seen from the street. For the reasons set out above, the Tribunal finds that the proposed fill does not unacceptably infringe the performance criteria of cl 6.6 of the Codes.
However, the proposed development will also include the erection of the light timber fence to the front boundary. This is within the front setback area and will project approximately 2 metres forward of the existing screen wall at Lot 3 which is set back from the Bayley Street boundary.
The finished level of the fence is approximately AHD 9.7 while the contour plan submitted in evidence indicates that the street at this point is at approximately AHD 8.5. Thus, the top of the fence at the front boundary will be approximately 1.2 metres above street level. This height will increase to approximately 1.7 metres at the front boundary as the verge falls away from the street level.
When viewed from the west, the approximately 2 metres of fence and retaining wall which will project beyond the existing screen wall at Lot 3 will vary in height from approximately 1.2 metres at the front boundary to approximately 2.5 metres at the junction with the existing screen wall. While the existing screen wall on the adjoining property is something of an anomaly in being set back from the boundary, the proposed wall and fence will effectively establish a substantial structure within the primary street setback area.
Such a structure will appear incongruous and will have a discordant visual impact on the character of the streetscape particularly when viewed from west of the subject land.
In addition, the acceptable development criteria of cl 6.2.5 of the Codes, require that the front wall and fences in the front setback area are visually permeable 1.2 metres above natural ground level. The proposed development does not meet this requirement; nor does it meet the performance criteria of the same clause.
For the reasons set out above, the Tribunal finds that the proposed development within the front setback area does not comply with either cl 5.6.1(a) of the Woodbridge Conservation Precinct Design Guidelines or the performance criteria of cl 6.2.5 of the Codes.

Conclusion

The development the subject of review involved the construction of a retaining wall and the filling of a section of the subject land adjacent to the western boundary at the subject site.
The significant issues in this matter were the potential impacts of the development on the adjoining property at Lot 3, and on the streetscape of Bayley Street.
While much of the evidence provided sought to address the question of the extent of fill, the Tribunal was of the view that the substantive impacts of the development derived from the proposed light timber fence to be erected on top of the proposed retaining wall. While this fence resolved any issues associated with overlooking from the subject site to the adjoining property it also substantially increased the sense of enclosure within, and diminished the current fairly open character of, both the pool area, and more particularly the enclosed alfresco area of the adjoining property.
In addition, the proposed timber fence extended to the front boundary of the property infringing the requirements of both the Woodbridge Conservation Precinct Design Guidelines and the performance criteria of cl 6.2.5 of the Codes.
For these reasons, the application for review was dismissed.

Orders

For the above reasons, the Tribunal makes the following orders:
The application for review is dismissed for the following reasons:
(a) The proposed development does not meet the objective of cl 6.6 of the Residential Design Codes of Western Australia (2008).
(b)The proposed development infringes the requirements of both the Woodbridge Conservation Precinct Design Guidelines and the Performance Criteria of cl 6.2.5 of the Residential Design Codes of Western Australia (2008).

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER