VERGOLA WA and CITY OF SUBIACO
[2007] WASAT 6
•15 JANUARY 2007
VERGOLA WA and CITY OF SUBIACO [2007] WASAT 6
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 6 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:224/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 14/01/07 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld | ||
| B | |||
| PDF Version |
| Parties: | VERGOLA WA CITY OF SUBIACO |
Catchwords: | Open space Plot ratio Internal courtyard Building Patio Pergola Permeable Outdoor living area Site cover |
Legislation: | City of Subiaco Town Planning Scheme No 4, Sch 4 Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.4.2, cl 3.4.2 A2, cl 3.4.2 P2 Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a) |
Case References: | Nil Nil |
Orders | On the application determined by Senior Sessional Member Lloyd Graham on 15 January 2007, it is ordered that:,1. The application for review is upheld.,2. The decision under review is set aside. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : VERGOLA WA and CITY OF SUBIACO [2007] WASAT 6 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 15 JANUARY 2007 FILE NO/S : DR 224 of 2006 BETWEEN : VERGOLA WA
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Open space - Plot ratio - Internal courtyard - Building - Patio - Pergola - Permeable - Outdoor living area - Site cover
Legislation:
City of Subiaco Town Planning Scheme No 4, Sch 4
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.4.2, cl 3.4.2 A2, cl 3.4.2 P2
Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a)
(Page 2)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant : Mr T Bush (Acting as Agent)
Respondent : Ms N Goode (Acting as Agent)
Solicitors:
Applicant : ACB Consulting Pty Ltd
Respondent : City of Subiaco
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged by ACB Consulting Pty Ltd against a decision of the City of Subiaco to not approve the construction of a Vergola over an internal courtyard at 14 Old Jacaranda Way, Subiaco.
2 In undertaking this review, the Tribunal had regard to the arguments of both parties and examined the background to the City's decision in the context of the legislation, policies and guidelines; particularly the relevant provisions of the Residential Design Codes of Western Australia (2002). The likely effect of a constructed Vergola on sunlight into the internal courtyard was also examined, along with the circumstances of previous approvals for Vergolas elsewhere in the City.
3 In the view of the Tribunal, the parties have placed great emphasis on the importance of various definitions in the Codes; including that of a "building", a "patio" and a "pergola", and have tried to accommodate a Vergola structure within the definitional framework in order to advance their respective arguments. Such an approach, although important, was deficient in the context of the Codes as a whole.
4 What was also required was an examination of the rationale behind the Codes; particularly in relation to "open space" and the designing of structures for climatic conditions and an assessment of the proposal against the relevant performance criteria. This was undertaken in the review.
5 In the circumstances of this case the weight of argument falls with the applicant, as the on-site area of "open space", once located beneath a Vergola, can still be assessed as such and not as site cover with consequential effects on "plot ratio".
6 The application for review has been upheld.
Introduction
7 The application for review, dated 4 July 2006, was lodged by ACB Consulting Pty Ltd on behalf of Vergola WA (applicant) against a decision of the City of Subiaco (respondent) on 2 June 2006 to not approve the construction of a "Vergola" (Vergola) over an internal courtyard at 14 Old Jacaranda Way, Subiaco. The property is owned by Diane J Roberts-Maggi.
(Page 4)
8 The application was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
9 The notice of the Council's decision was made under Sch 4 of the City of Subiaco Town Planning Scheme No 4 and it advised:
"The application for approval to commence development in accordance with the plans dated 10 April 2006 attached thereto is refused for the following reason(s):
(a) The proposed Vergola will reduce onsite open space to 10.3% in lieu of the required 20%.
(b) The proposed Vergola will increase the plot ratio on site to 1.15:1 in lieu of the permitted 1.0:1.
(c) The proposed Vergola will result in 100% roof cover over the internal courtyard in lieu of the requirements of the Salvado Road Precinct Site Design Guidelines.
(d) The proposed Vergola will diminish the access to sunlight for the ground floor dining, living and kitchen and upstairs study."
Subject land and legislative framework
10 The subject land can be described as No 14 (Lot 128) Old Jacaranda Way, Subiaco, and is situated within Precinct 4 Salvado Road of the Subiaco Redevelopment Scheme. The area of the site is 211 square metres and has been developed with a two storey terrace house.
11 Of relevance in this matter are the Residential Design Codes of Western Australia (2002) (Codes) which were prepared as a Statement of Planning Policy under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act). In accordance with s 61(1)(a) of the TPD Act, the Tribunal is required to "have due regard to relevant planning considerations ..." covered by such a statement.
12 The provisions of the Salvado Road Precinct Site Design Guidelines (guidelines) are also relevant.
Respondent's position
13 The respondent's position is outlined by Ms Natalie Goode, Manager Planning Services, in a Statement of Issues, Facts and Contentions dated
(Page 5)
- 7 September 2006. She argues that a Vergola cannot be assessed as open space because:
(a) A Vergola is promoted and functions as a form of roof structure which is capable of being made impervious to rain, and also carries out a shading function. The fact that the louvres may be opened does not alter the fact that a Vergola is a structure on land appurtenant to a dwelling, and therefore falls within the definition of a "building" under the Codes.
(b) The Codes definition of "open space" specifically excludes areas covered by buildings.
(c) A Vergola cannot be defined as a "pergola" because it is not an unroofed structure and is not open framed. It is enclosed on all four sides.
(d) Although the louvres could potentially be locked in an open position, thereby being water permeable and functioning as a pergola, the respondent contends that a Vergola still provides a roofing function to provide shade and protection from the wind, even in the open position.
(e) A Vergola falls within the definition of a "building" which also includes a "patio". As a Vergola could have open sides in the same way as a "patio" can, it is only appropriate to include the area covered by a Vergola as "open space" if it is:
"not more than 0.5m above natural ground level, is unenclosed on at least two sides and covering no more than 10% of the site area or 50 square metres (whichever is the lesser)."
(f) The two previous Ministerial decisions of 14 September 1995 and 13 October 1998 related to the then Codes in which a "pergola" was not defined. The current Codes of 2002 provide a definition for "pergola", which the respondent believes does not include a Vergola.
14 The position of the applicant is contained in the response of Mr Terry Bush, Manager, ACB Consulting Pty Ltd, of 20 September 2006
(Page 6)
- to the respondent's Statement of Issues, Facts and Contentions. The response argues:
(a) A Vergola is permeable and therefore considered as "open space".
(b) It is not contested that a Vergola is a "building". The Codes define a "building" which excludes a "pergola". However, any structure which has an upper covering (including shade cloth) has a roof; therefore a traditional "pergola" is a roofed structure. The intent of the Codes is to allow "pergola" type structures to be erected without control, as they permit "open space" to be used as outdoor living areas.
(c) The structure has an open roof and each side is not secured to any wall or other structure.
(d) The respondent contends that even if the roof was open and functioned as a "pergola", it would still provide shade in the same way as a roof. However, other permitted material such as "shade cloth" and "shade sail" would also perform a shade function and would be permitted. The fact that a Vergola can provide controlled shading and have the window drapes open is a better solution than having heavy drapes (as in this case) closed permanently.
(e) Although there was no definition of a "pergola" under the previous Codes, the two Ministerial letters of September 1995 and October 1998 refer to the structures as an "adjustable pergola". As there was no definition of a "pergola", the references can only refer to cl 2.1.2 of the then Codes which contained reference to "open space" to include an "unroofed area". As each Minister has supported the claim that a Vergola is not a roofed area, it meets the definition of a "pergola", which can be considered as "open space".
15 The principal planning issue is whether an on-site area of open space, once located beneath a Vergola, can still be assessed as open space, or must then be assessed as site cover?
(Page 7)
Assessment of proposal
Background
16 An application for development approval was signed by Mrs Roberts-Maggi on 5 April 2006 and subsequently lodged with the City of Subiaco by Vergola WA. The estimated cost of the development was $12 650.
17 Following the refusal to commence development on 2 June 2006 by the City, a letter dated 25 September 2006 from Mrs Roberts-Maggi was lodged with the Tribunal as part of the applicant's response to the respondent's Statement of Issues, Facts and Contentions. It argued:
(a) The terrace home in Subiaco Centro has an internal courtyard surrounded by two storeys of glass windows which are completely impractical in the warm climate. The heat floods the home on both levels causing damage to furniture, wood floors and carpets. Air conditioning operates continuously.
(b) Although responsibility is taken for purchasing the property, there was no reason to assume that the City would reject the proposal, as the Vergola concept was listed on the Government's Energy Sustainability website as a recommended product. Also, other homes in the precinct had installed Vergolas to block out excessive sunlight.
(c) A sun shade with a cloth covering over the area has been used. This was an inadequate solution as ultra-violet rays streaked through the edges. Also, the heavy winter rains have created rising damp, mildew and mould on the pavers.
(d) The City concedes that a number of homes had Vergolas approved prior to the receipt of legal advice on 8 August 2005. This advice was not made public when the home was bought in September 2005.
(e) Whether a Vergola is a roof structure seems to be the point of contention. This appears to be a silly argument as the aim is to control the elements and preserve the environment.
(Page 8)
- (f) The solution of a Vergola would be an asset to energy sustainability, leading to a lowering of gas emissions and greatly reduced electricity consumption. The Vergola would be invisible to neighbours.
(g) The product is an overall winner and property owners should be encouraged to use it rather than being hindered by petty time wasting objections from planning departments.
What is a Vergola?
18 In the sales promotional material provided to the Tribunal by the applicant, the following statements are made:
(a) "Maximising the use of your outdoor areas has always been a challenge. If you install a conventional roof, how do you avoid the problems of either blocking out natural light, or creating a 'hot house' with no breeze, especially on hot days? Vergola provides the solution – versatility to meet diverse needs."
(b) "Australia's first complete louvre roofing system, Vergola's ability to control the elements makes it a natural choice over traditional roof coverings."
(c) "With the flick of a switch, Vergola's louvres can be adjusted to let the light in, keep the sun out or protect outdoor entertaining areas from rain."
(d) "Our system has built in air gaps formed by the louvres 'double-skinned' construction for extra insulation. These unique gaps:
• create a gentle breeze on hot days.
• prevent the sun's heat being transposed to the underside, creating a cooler outdoor area."
(e) "A Vergola will assist in reducing your heating and cooling costs by shielding exterior walls and windows previously exposed to strong sunlight."
(f) "Blinds and furnishings will have an extended life, with Vergola controlling light and sun exposure."
(Page 9)
- (g) "A Vergola is constructed from a solid timber and/or steel frame, and features all required Colorbond guttering and downpipes. The louvres rotate on hard-wearing, greaseless, nylon bearings which are impermeable to moisture and UV radiation ..."
19 It is clear to the Tribunal that a Vergola is a roof ventilation system that is an advance on a skylight or series of roof vents built into a roof or attic. From the photographic evidence available it can cover all or part only of a roof, which can be pitched, A-frame, standard horizontal/vertical or angled in design. The louvres can rotate from 0 degrees through to 150 degrees by way of electrical or winder operation.
20 Again, from the photographic evidence the structure can be supported by vertical posts or pillars and be of open design attached to an existing structure, or enclosed on one or more sides by glass panelling or sliding glass doors.
The Codes – definitions
21 Under the Codes the following definitions are relevant to this matter:
(a) "Building
Any structure whether fixed or moveable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools."
(b) "Open Space
Generally that area of a lot which is not occupied by any building and includes:
- • open areas of accessible and useable flat roofs and outdoor living areas above natural ground level;
• areas beneath eaves overhangs, verandahs or patios not more than 0.5m above natural ground level, unenclosed on at least two sides and covering no more than 10 per cent of the site area or 50sqm whichever is the lesser;
- • pergolas;
• uncovered driveways (including access aisles in parking areas) and uncovered carbays; ..."
- (c) "Patio
A water impermeable roofed open-sided area."
(d) "Pergola
An unroofed open-framed structure."
(e) "Outdoor Living Area
The area external to a Single House or Grouped Dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use but excludes any area with a dimension of less than one metre minimum dimension or which, by reason of its development or topography, is not readily accessible from the dwelling."
(f) "Private Open Space
Open space set aside on a lot for the exclusive use of the occupants of the dwelling to which it abuts and excludes car parking spaces and accessways."
22 What is clear to the Tribunal is that the existing site area to be covered by the proposed Vergola does fall within the definition of "open space", "private open space" and "outdoor living area". What is less clear is whether a Vergola, with its opening and closing function, falls within the definition(s) of a "building", "patio" or "pergola".
The Codes – open space
23 Under "Part Three – Design Elements" the matter of "open space" is addressed under "3.4 Element 4 – Open Space". It explains:
(a) "In the Codes, open space means that part of a site not covered by buildings. However, above ground areas, external to dwellings, accessible and sufficiently large to be usable, such as roof decks may be included."
(b) "Private open space is synonymous with open space in the case of Single Houses and Grouped Dwellings. As
- the manner in which open space is used may vary over the life of the dwelling, and is more likely to be reduced than increased, it is important to retain flexibility and, accordingly, the Codes should not unduly constrain how open space is provided."
- (c) "In the case of Single Houses or Grouped Dwellings there should be provision of at least one outdoor area that is:
• large enough to be usable;
• easily accessible from an indoor living area; and
• with access, if possible, to winter sun.
Because of the importance of providing shade in summer, especially in conjunction with outdoor living, a part of such areas should be allowed to be permanently roofed."
"An outdoor area capable of use in conjunction with a habitable room of the dwelling, and if possible, open to winter sun."
25 In the view of the Tribunal, the Codes appear to acknowledge that although the correct amount of open space may have been provided at the time of the construction and development of an original dwelling, that over time some flexibility should be allowed as to how an outdoor living area is to be used as open space.
The matter of plot ratio
26 Under the Codes "plot ratio" is defined in part as:
"The ratio of the gross total of the areas of all floors of buildings on a site to the area of land within the site boundaries …"
27 The respondent contends that as a Vergola falls within the Codes' definition of a "building", and the proposal covers an internal courtyard enclosed on three sides by the existing house and on the fourth by a two storey parapet wall associated with the house on the adjoining lot to the
(Page 12)
- north, that an approval would lead to a plot ratio of 1.15:1 in lieu of a plot ratio of 1.0:1 permitted by the guidelines.
28 On the other hand the applicant argues that:
(a) There is no minimum requirement to determine whether a structure is open or unroofed.
(b) A Vergola, when fully closed, does have an opening between louvres of approximately 3 millimetres to 5 millimetres and is not fully sealed. It does permit air and water to pass through.
(c) The design of the Vergola is such that the amount of rain does have to be greater than normal to provide the volume and flow required to overflow the edge lip of the louvre. However, when the volume of water does reach the capacity of the lip edge it does pass over and through the gap onto the surface immediately below, therefore making it permeable.
(d) As the roof structure is open and therefore unroofed it does not contribute to plot ratio. It does however contribute to open space.
29 In the respondent's response to applicant's submission dated 5 October 2006 it argues:
(a) "The respondent questions what 'greater than normal' in reference to water volume or rainfall means. This is an ambiguous statement as normal could be taken to be light drizzle or heavy rain. The respondent also contends that should the louvres be angled along their length the water on the louvres could run off into a downpipe system and thereby limiting the potential for water to build up on the louvres and permeate through. This would result in little or no water permeating through the structure when the louvres are fully closed."
(b) "The respondent contends that a pergola is specifically excluded from the definition of building by the Codes and as the applicant acknowledges that a Vergola is indeed a building but not specifically excluded from the definition, the structure cannot contribute to open space under the Residential Design Codes."
(Page 13)
30 In the view of the Tribunal it does appear from the information before it that a Vergola, with its opening and closing function, has not been anticipated by the Codes, and what the parties are attempting to do is to try and accommodate the structure within the framework of the Codes in order to pursue their respective arguments. This is an understandable approach, but a less than satisfactory one when arguing the issue of "plot ratio", and where the structure could be open or closed, or somewhere in between, according to the seasons or the weather conditions of the day.
The matter of access to sunlight
31 The respondent argues that cl 3.2 of the guidelines states that:
"The houses should be designed so that the most used daytime rooms are orientated to receive the maximum amount of northern winter sun whilst at the same time preserving solar access to adjoining properties."
32 In pursuing its case the respondent contends that:
(a) As a Vergola falls within the Codes' definition of a "building" and provides a roofing function, the internal courtyard would be completely covered by the proposed Vergola in lieu of the requirements of the guidelines.
(b) The fact that a Vergola could be opened to allow sunlight permeability does not change the fact that the louvres could also be closed to completely block out the sun. This could occur for 100% of the time should the landowners wish, thereby compromising the purpose of the courtyard which is to allow natural light and ventilation to the building.
(c) If the landowners wish to obstruct sunlight a "shade sail" could be used which would not provide the same degree of roofing function as a Vergola.
33 The applicant argues that:
(a) The proposal meets the access to sunlight criterion under the Performance Criteria of the Codes (cl 3.4.2 P2).
(b) If a "shade sail" is acceptable to the respondent then the courtyard could be covered with a battened material fixed to the rafters providing there is a gap between the battens. The battens could then be covered with shade cloth.
(Page 14)
- (c) As there is no minimum requirement for spacing of battens you could have a 5 millimetre to 10 millimetre spacing with 90% shade cloth. This would constitute an open structure but provide almost 100% shade.
(d) Alternatively, the proposed Vergola with a 3 millimetre to 5 millimetre gap between 16 louvres covering an area of approximately 21.6 square metres (3.6 metres by 6 metres) would provide an approximate 13% minimum permeable opening.
34 In its response to the applicant's submission the respondent contends:
"... that should an application for a pergola structure with such closely placed battens be lodged, the City would consider the proposal as a roof covering as the spacing between the battens is so minimal that little to no rain or sunlight would be able to permeate through. This would thereby provide a roofing function and not be classified as a pergola but a patio."
35 In considering this matter the provisions of Part Three – Design Elements of the Codes is relevant. Under Design Element 3.9 (Element 9 - Design for Climate) it tackles the questions of energy conservation and comfortable living in part by the following:
(a) "Dwellings should be laid out so that at least one living area (preferably the one used most of the day) faces north or within 15 degrees of north. An outdoor living area is also best located on the north side of the dwelling."
(b) "Pergolas with removable awnings or deciduous vines can be designed to provide solar access for desired times in the winter while excluding solar access for desired times in summer. So will pergolas with correctly angled blades, called solar pergolas."
36 In the view of the Tribunal, the matter of access to sunlight is an important consideration, but once again the Codes and guidelines do not appear to have anticipated an advanced roof ventilation system that, with optional extras, can include rain sensors that close a Vergola automatically during rain, or a remote control to maximise ease of operation.
37 However, what does appear to have been anticipated is a so called "... pergola with correctly angled blades, called solar pergolas." This
(Page 15)
- concept is as close to a Vergola as the Codes come, and is advanced under the category of a "pergola".
The matter of previous approvals and Ministerial opinion
38 It is common ground between the parties that previous approvals have been issued for Vergolas in the City of Subiaco for enclosed courtyards at 25 Laurino Terrace, Subiaco and at 14 Darbon Crescent, Subiaco.
39 In the view of the applicant the approvals were issued by the respondent. Also, it is argued that many other local authorities consider a Vergola as open and unroofed.
40 On the other hand the respondent contends that although it supported the applications prior to receiving legal advice in August 2005 that a Vergola was a "building", it was the Subiaco Redevelopment Authority that issued the approvals.
41 Although the actual legal advice has not been made available to the Tribunal, what has been made available is an approval to undertake development for a Vergola over a courtyard as issued by the Subiaco Redevelopment Authority for 25 Laurino Terrace, Subiaco on 11 August 2005. A subsequent building licence for a Vergola/Pergola was issued by the City on 8 September 2005 (Licence Number 6.2005.191.1).
42 Also, copy of a building licence (Licence No 556/2006/BUILDR) for a Vergola as issued by the City of Belmont on 4 September 2006 at 93 Waterway Crescent, Ascot was made available by the applicant in order to indicate how these proposals are assessed elsewhere.
43 Further material provided to the Tribunal included two Ministerial opinions on Vergolas; the first by the Hon Richard Lewis JP MLA, Minister for Planning and Heritage on 24 September 1995, and the second by the Hon Graham Kierath MLA, Minister for Planning; Employment and Training; Heritage on 13 October 1998. In the latter advice to Mr M Griffiths, Managing Director, Vergola WA, the Hon G Kierath MLA states:
"I have taken note of the information provided by my predecessor, the Hon Richard Lewis, when he advised you that, in his opinion, structures marketed as Vergolas are adjustable pergolas which can be used in whatever way the occupier of the
(Page 16)
- dwelling prefers and that they are not marketed as being weatherproof when in the closed position. My conclusion is the same as that of the Hon Richard Lewis. I believe that the purpose of the structures is to create a situation whereby the owner of the dwelling may adjust conditions to part of the outdoor area of his or her dwelling so as to enjoy the particular conditions preferred. This, to my mind, makes the structure much more akin to that of an adjustable pergola than a roofed area designed to be weatherproof.
I wish to confirm, therefore, that for matters which will come before me for decision with respect to appeals; I will characterise them as being pergolas for the purpose of planning control and make my decisions accordingly."
44 The view of the respondent in this matter is that at the time the Ministerial opinions were given, a "pergola" was not defined in the then Codes. They argue that under the existing Codes a "pergola" is defined, and the definition does not include a Vergola.
Conclusion
45 The application for review was lodged against a decision of the City of Subiaco to not approve the construction of a Vergola at 14 Old Jacaranda Way, Subiaco. The reasons for refusal were that the proposed Vergola would reduce the on-site open space to 10.3% in lieu of the required 20%, would increase the plot ratio from 1.15:1 in lieu of the permitted 1.0:1, would result in 100% roof cover in lieu of the requirements of the guidelines and, by doing so, diminish access to sunlight for the ground floor, dining room, living room, kitchen and upstairs study.
46 In assessing this matter, the Tribunal has had regard to the arguments of both the respondent and the applicant, together with the background to the proposal and the relevant provisions of the Codes; including an analysis of their "open space" and "plot ratio" requirements. The presence of a Vergola, and its likely affect on sunlight into the internal courtyard, was also examined along with the issue of previous approvals for Vergolas in Subiaco. The intent of two previous Ministers in dealing with Vergolas on appeal was outlined.
47 In all of the analysis the prime issue relates to the definition of a "building" as outlined in the Codes.
(Page 17)
48 In the view of the respondent, because the roof of the Vergola can be closed and is impervious to rain and sunlight it is, like a "patio", a "building". They argue that, in this particular case, the consequential effects of a Vergola would lead to an increase in "plot ratio", a decrease in "open space" and be contrary to the guidelines.
49 Alternatively, the applicant advances the somewhat incongruous argument in the context of the Codes that although a Vergola is a "building", the roof can be open to the elements. In that sense it is then equivalent to a "pergola", which is permeable to rain and sunlight and therefore not classified as a "building" under the Codes. Accordingly, it is argued that the ground area covered by a Vergola is still "open space", and "plot ratio" is not thereby affected.
50 The matter is complicated to a degree by the applicant's argument that there is a 3 millimetre to 5 millimetre opening between the louvres which allow air and water to pass through to the ground below. However, for the purposes of this review the Tribunal accepts the statement in the published material of Vergola WA that a Vergola can "protect outdoor entertaining areas from rain" and that a fully closed roof is hypothetically impermeable to the elements. Alternatively, the Tribunal accepts that when the louvres of the roof are open, the structure is permeable to the elements.
51 In the first circumstance it is not difficult to accept the respondent's argument that a closed roof that is impermeable to sunlight and rain is, like a "patio", a "building". However, the difference with a Vergola is that as the louvres open by a single degree or more through to a maximum of 150 degrees, that the structure progressively and incrementally takes the form of a "pergola", which is permeable to both light and rain.
52 What the Tribunal acknowledges, but finds difficult to accept in a practical sense, is the proposition by the respondent that theoretically the roof could remain permanently closed. This is highly unlikely; particularly during summer evenings and in winter when access to sunlight is eagerly sought.
53 In the view of the Tribunal, although the definitions of "building", "patio" and "pergola" as described in the Codes are important, a Vergola, which is an advanced roof ventilation system that could include rain sensors that close the roof automatically with rain or include a remote control for ease of operation, has not been anticipated in those definitions.
(Page 18)
54 What the parties are attempting to do is to try to accommodate the structure within the existing definitional framework of the Codes in order to advance their respective arguments. In these circumstances further analysis is required.
55 What is needed is to examine the rationale behind the relevant provisions of the Codes and "3.4 Element 4 – Open Space" is helpful. It explains that the manner in which open space is used may vary over the life of a dwelling and is more likely to be reduced than increased. Also, that the Codes should not unduly constrain how open space is provided.
56 The Codes go on to say that there should be at least one outdoor area that is large enough to be usable, is easily accessible from an indoor living area and, if possible, has access to winter sun. Also, because of the importance of providing shade in summer, a part of such areas should be allowed to be permanently roofed.
57 Having regard to the circumstances of this case, the internal courtyard is large enough to be usable, is easily accessible from an indoor living area and has access to winter sun. Again, the internal courtyard is part only of the open space (approximately 50%) and the louvres of the Vergola can be closed on an "as required" basis.
58 Admittedly, most of these requirements are met by the existing internal courtyard without the presence of a Vergola, but the Vergola does not of itself diminish these requirements.
59 With respect to Outdoor Living Areas, the Performance Criteria (cl 3.4.2 P2) require:
"An outdoor area capable of use in conjunction with a habitable room of the dwelling, and if possible, open to winter sun."
60 Once again, the provision of a Vergola does not diminish the Performance Criteria requirements and, in the view of the Tribunal, are met by the proposal.
61 Again, under "Element 9 – Design for Climate" the questions of energy conservation and comfortable living are addressed, and although the Codes do not appear to have anticipated an advanced air ventilation system such as a Vergola they have addressed a so called "... pergola with correctly angled blades, called solar pergolas". This concept is as close to a Vergola as the Codes come, and is advanced under the category of a "pergola".
(Page 19)
62 In the circumstances of this case the Tribunal believes that the weight of argument falls with the applicant and the on-site area of "open space" (in this case an internal courtyard), once located beneath a Vergola, can still be assessed as "open space" and not as site cover with its consequential effects on "plot ratio". Having said that, the Tribunal believes that if sometime in the future the remaining 10.5% of open space was also subject to an application for a Vergola and refused by the respondent, a very different decision may well be taken by the Tribunal on an application for review. This could occur to ensure that part of the "open space" was guaranteed to be permanently open to the elements. Such a decision would be taken in circumstances different to this case, and at this time, and where a Vergola had already been built on approximately half of the available open space.
Orders
63 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is upheld.
2. The decision under review is set aside.
I certify that this and the preceding [63] 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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