WADA and TOWN OF CAMBRIDGE
[2017] WASAT 119
•11 SEPTEMBER 2017
WADA and TOWN OF CAMBRIDGE [2017] WASAT 119
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 119 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:20/2017 | 16, 17 AND 30 MAY 2017 | |
| Coram: | MR M SPILLANE (SENIOR MEMBER) MS M CONNOR (MEMBER) MS R MOORE (MEMBER) | 11/09/17 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Decision of respondent affirmed Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | GABRIELA BARBOSA WADA TOWN OF CAMBRIDGE |
Catchwords: | Single residence development Ocean Mia Design Guidelines Third storey Height Location of courtyard Bulk and scale |
Legislation: | Planning and Development Act 2005 (WA), s 257B Town of Cambridge Local Planning Scheme No 1, cl 5(3), cl 18, cl 19(3), cl 38(4), cl 56, cl 56(2), cl 57, Pt 7 Planning and Development (Local Planning Scheme) Regulations 2015 (WA), cl 3, cl 27(1), cl 67, cl 67(g), cl 79(2), Sch 2, Pt 9 |
Case References: | Clive Elliott Jennings & Co Lty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433 Puma Energy Australia and City of Cockburn [2016] WASAT 36 Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 |
Orders | 1. The respondent's decision of 20 December 2016 is affirmed.,2. The application for review is dismissed. |
Summary | Gabriela Wada applied to the Town of Cambridge for development approval for Lot 566, 14 Alkoomie Terrace in the Ocean Mia estate, City Beach for the construction of a three storey house on vacant land.,Following consideration of the matter by the Town of Cambridge the application was refused for the reasons that:,1) The design presents as a three storey form and is not a double storey form;,2) The Ocean Mia Design Guidelines permit only mezzanine floors or lofts within the prescribed building envelope of a double storey form; and,3) The three storey scale dwelling is out of context with the streetscape and the existing surrounding double storey dwellings in the street.,On 13 January 2017 Ms Wada filed an application with the Tribunal to set aside the decision of the Town of Cambridge and approve the proposed development. ,Following unsuccessful mediation the matter was listed for final hearing and was heard over two days on 16 and 17 May 2017 with final submissions being received on 30 May 2017.,Having considered all of the evidence in the matter and the parties' submissions the Tribunal concluded that the building as planned was not in the form, scale and appearance sought by the Ocean Mia Design Guidelines and as designed would stand out in a significant manner as against its neighbours which is not in keeping with the streetscape or the Ocean Mia Design Guidelines.,The Town of Cambridge decision to refuse the application was therefore affirmed and the application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WADA and TOWN OF CAMBRIDGE [2017] WASAT 119 MEMBER : MR M SPILLANE (SENIOR MEMBER)
- MS M CONNOR (MEMBER)
MS R MOORE (MEMBER)
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Single residence development - Ocean Mia Design Guidelines - Third storey - Height - Location of courtyard - Bulk and scale
Legislation:
Planning and Development Act 2005 (WA), s 257B
Town of Cambridge Local Planning Scheme No 1, cl 5(3), cl 18, cl 19(3), cl 38(4), cl 56, cl 56(2), cl 57, Pt 7
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), cl 3, cl 27(1), cl 67, cl 67(g), cl 79(2), Sch 2, Pt 9
Result:
Decision of respondent affirmed
Application for review dismissed
Summary of Tribunal's decision:
Gabriela Wada applied to the Town of Cambridge for development approval for Lot 566, 14 Alkoomie Terrace in the Ocean Mia estate, City Beach for the construction of a three storey house on vacant land.
Following consideration of the matter by the Town of Cambridge the application was refused for the reasons that:
1) The design presents as a three storey form and is not a double storey form;
2) The Ocean Mia Design Guidelines permit only mezzanine floors or lofts within the prescribed building envelope of a double storey form; and
3) The three storey scale dwelling is out of context with the streetscape and the existing surrounding double storey dwellings in the street.
On 13 January 2017 Ms Wada filed an application with the Tribunal to set aside the decision of the Town of Cambridge and approve the proposed development.
Following unsuccessful mediation the matter was listed for final hearing and was heard over two days on 16 and 17 May 2017 with final submissions being received on 30 May 2017.
Having considered all of the evidence in the matter and the parties' submissions the Tribunal concluded that the building as planned was not in the form, scale and appearance sought by the Ocean Mia Design Guidelines and as designed would stand out in a significant manner as against its neighbours which is not in keeping with the streetscape or the Ocean Mia Design Guidelines.
The Town of Cambridge decision to refuse the application was therefore affirmed and the application for review was dismissed.
Category: B
Representation:
Counsel:
Applicant : Paul McQueen
Respondent : C Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods Barristers and Solicitors
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Lty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Introduction
1 In May 2016 Gabriela Wada (applicant) applied to the Town of Cambridge (respondent/Council) for development approval for construction of a three storey house on vacant land in the Ocean Mia estate in City Beach.
2 The officers of the Council assessed the plans and initially recommended that the development be refused for reasons associated with excessive bulk and scale, and overlooking habitable areas of adjoining properties. However, amended plans were submitted on 15 November 2016 which led to the officers recommending that the development be approved subject to conditions. At its meeting of 20 December 2016 Council resolved to refuse development for the following reasons:
1. The design presents as a three storey form and is not in double storey form. The Ocean Mia Design Guidelines permit only mezzanine floors or lofts within the prescribed building envelope of a double storey form.
2. The offset of 1 metre on the third level does not provide sufficient relief from the boundary bulk created because the dwelling extends boundary to boundary.
3. The three storey scale of the dwelling is out of context with the streetscape and the existing surrounding double storey dwellings in the street.
4. The relocation of the courtyard from the position identified in the Type 5 Specific Lot Guidelines has significantly increased the amount of building bulk as seen from the street.
3 On 13 January 2017 the applicant filed an application with the Tribunal to set aside the decision of the respondent dated 20 December 2016 and to approve the proposed development.
4 Following mediation which was unsuccessful the matter came on for hearing on 16 and 17 May 2017 with final submissions on 30 May 2017.
Subject land
5 The applicant is the owner of land known as Lot 566 (No 14) Alkoomie Terrace, City Beach (Lot 566 or Land). It:
a) is currently vacant;
b) has an area of 225m2;
c) is zoned 'Residential' pursuant to the Scheme and is subject to a residential density code of 'R30/40'; and
d) is within Special Control Area 1 Kalinda Development Area (SCA 1) designated by the Scheme.
Planning framework
Local Planning Scheme
6 The subject site is zoned 'Residential' under the Town of Cambridge Local Planning Scheme No. 1 (LPS 1 or Scheme) with a residential density code of R30/40. The subject site is located in Precinct P1 City Beach and within SCA 1.
7 The general objectives of LPS 1 are set out in cl 5(3) and include the following:
(a) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, …
…
(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:-
(i) recognises the individual character and needs of localities within the scheme Area; and
(ii) can respond readily to change[.]
Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in [the] Scheme Text, the Planning Policies and the Residential Design Codes.
9 Further, cl 19(3) requires that:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.
10 Part 7 of the Scheme sets out provisions relating to Special Control Areas. Clause 56 of the Scheme identifies Special Control Areas within the Scheme Area and states that these areas require comprehensive planning and for which specific controls to guide and coordinate subdivision and development are needed. As previously mentioned, the subject site is located in SCA 1. Further, cl 56(2) provides that 'subject to any Scheme provision to the contrary, the provisions of Part 7 which apply to a Special Control Area are in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme'.
11 Clause 57 of the Scheme sets out the provisions relating to SCA 1, which is described as follows:
Kalinda Development Area - The area consists of the Ocean Mia development in City Beach which is the area generally bound by The Boulevard, Kalinda Drive and Alkoomie Terrace as well as the former quarry site at Lot 9001 Alkoomie Terrace.
12 The purpose of the Special Control Area was to facilitate detailed site planning for development and subdivision for the SCA 1 which includes the Residential zoned area known as Ocean Mia (the former bowling club and scout hall site) and Development zoned area (former quarry site): cl 57(2).
13 The objectives for SCA 1 are set out in cl 57(3) of the Scheme as follows:
(a) In the area including the former bowling club site and scout hall site (the Residential zoned area):-
(i) to facilitate development of the land predominantly for residential purposes, but generally in accordance with the use permissibility designations applicable to the Residential Zone in the Zoning Table;
(ii) to facilitate development in accordance with a split residential density coding of R30/40; and
(iii) ensuring that the split residential density coding of R30/40 produces a spread of residential densities and styles by requiring the preparation and approval of an Structure Plan prior to the Council:
A. considering recommending subdivision; or
B. approving development within the area.
(iv) ensuring that development of the site satisfies all necessary environmental requirements.
(a) In addition to the matters referred to in Clause 67 of Schedule 2 Deemed provisions for Local Planning Schemes of the Planning and Development Regulations 2015, the Council shall have regard to the objectives set out in the preceding subclause (3) when considering recommending subdivision; or approving development on land within SCA No. 1.
(b) Where a provision of this clause 57 is inconsistent with any other provision of the Scheme, the provisions of this clause shall prevail, except where the deemed provisions set out in Schedule 2 (deemed provisions), in which case the deemed provision prevails and the other provision, to the extent of the inconsistency, is to no effect.
(c) Structure Plan for Residential zoned area
…
(ii) A proposed Structure Plan for the Residential zoned area shall not be submitted to the Council unless it provides for land areas which achieve an average density of R35 and do not allow for development at a density greater than R40.
…
(v) The Structure Plan is to incorporate design guidelines to guide residential development in the Residential zoned area. The design guidelines are to indicate the extent of variations from the Codes may be approved by the Council.
(g) When determining development applications within SCA No.1, due regard is to be given to the future land use indicated in the Structure Plan dealing with SCA No.1.
15 Clause 38(4) of the Scheme sets out matters to be considered in determining an application. The Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36 found that pursuant to s 257B of the Planning and Development Act 2005 (WA) PD Act, cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) (deemed provisions) is deemed to form part of the Scheme. Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development of the subject of the application. The pertinent matters relating to this application are as follows:
• the aims and provisions of the Scheme (subclause (a));
• the requirements of orderly and proper planning (subclause (b));
• any local planning policy for the Scheme area (subclause (g));
• any structure plan that relates to the development (subclause (h));
• the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development (subclause (m));
• the amenity of the locality including the character of the locality (subclause (n));
• any submissions received on the application (subclause (y)); and
• any other planning considerations the local government considers appropriate (subclause (zb)).
16 Clause 67(g) of deemed provisions refer to any local planning policy for the Scheme area. Pursuant to cl 3(5) of the deemed provisions, in making a decision the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with the Scheme.
17 Further, cl 3 of the deemed provisions empowers the Council to make planning policies in respect to any matters relating to planning and development of the Scheme area. These policies may apply generally or in respect of a particular class or classes of matters specified in the policy and may apply to all or part of the Scheme area. Pursuant to cl 3(3) of the deemed provisions provides as follows:
A local planning policy must be based on sound town planning principles and may address either strategic or operational considerations in relation to the matters to which the policy applies.
18 The respondent has adopted the Ocean Mia Design Guidelines (Guidelines) (see below) which are to be considered as a local planning policy of the respondent for the purposes of this matter.
Outline Development Plan/Structure Plan
19 The subject site is located within the area subject of the Kalinda Development Area Outline Development Plan (ODP), which was prepared by the respondent in 2006.
20 Pursuant to cl 79(2) of Pt 9 of the LPS Regulations, the ODP continues in force and is to be taken to be a structure plan and as such, a decisionmaker for an application for development approval in an area covered by a structure plan, that has been approval by the Western Australian Planning Commission (WAPC) (which is the case in this instance), is 'to have due regard to, but is not bound by, the structure plan when deciding the application': cl 27(1) of deemed provisions.
21 The ODP identifies the subject lot as Residential and the relevant sections of the ODP that relate to this matter include:
• 'Lot Layout for housing diversity and density' which states as follows:
In order to provide housing diversity, within an R30 and R40 band, it is proposed to provide lots that can accommodate:
a standard two storey residence (lots above 400m2),
small lot residential which includes two storey residential with some parapet walls and upper floor setbacks (lots between 300 and 400m2); and
terrace type housing on lots small (sic) than 300m2.
• 'Building Height' which states that '[b]uilding heights throughout the subdivision are to be 2 storeys for single residential'; and
• 'Courtyards' which state that 'the guidelines will ensure the incorporation of courtyard and outdoor spaces that relate to the activity areas within the dwellings and are so located as to access as much winter sun as possible'.
Ocean Mia Design Guidelines
22 The Guidelines were adopted by the respondent in June 2006 and are the Guidelines referred to in the ODP. The Guidelines includes development standards which are intended to provide a degree of certainty for property owners as to what they can expect for their own homes, as well as for those being built around them.
23 The explanatory notes of the Guidelines attempts to explain the relationship between the Guidelines and the other planning instruments as follows:
The development standards referred to in these guidelines apply specifically to development within Ocean Mia. Where no reference is made to particular design elements, the provisions of the Town of Cambridge Residential Design Guidelines and the Residential Design Codes of Western Australian (R-Codes) shall apply. Where any conflict arises with any other code, these guidelines prevail.
24 The objectives of the Guidelines included the following:
1. To provide a residential development which has a high architectural quality and is responsive to its location.
…
3. To provide sufficient flexibility to allow for individual expression in design of a contemporary nature.
4. To provide scope for suitable indoor and outdoor areas.
…
6. To provide measures which will ensure compatability between neighbouring developments, within the confines of the density of the land development.
7. To provide a measure of certainty as to what can be expected from neighbouring development.
8. To provide for a reasonable level of solar access, having regard to the orientation of the lots and density[.]
25 The Ocean Mia subdivision has been divided into seven separate types of housing lots, with the subject site being contained within 'Type 5 South Facing Lots'.
26 The relevant sections of the 'General Guidelines' are as follows:
BUILDING FORM & SCALE
The new residences shall be characterised by their 'modern' style rectilinear forms, and express an emphasis on simple, cubiform shapes and distinctive roof forms that are either lowpitched hips (less than 20°), gables and skillions, butterfly roofs, flat roofs, or monopitched roofs[.]
The building form to the primary [street] frontage of each lot is to be single storey, with a two storey portion located to the rear. This will reduce the apparent scale of the new residences when viewed from the street, and encourages the creation of stepped-form buildings that respond to the sloping topography of the site. All new residences must incorporate both the single storey and two storey portions prescribed by the relevant lot diagrams.
PLANNING
… Within the double storey forms, mezzanine floors and lofts are permitted within the prescribed building envelope.
BUILDING HEIGHTS
In order to achieve a balance between privacy, views and solar access, new residences are to be a combination of single and double storey forms, which respond to the established topography and orientation of each site, as well as the primary street frontages and access ways.
Building heights throughout the subdivision are as follows:
Single storey 4.0 metres to the uppermost roof height
Double storey 8.5 metres to the uppermost roof height
The maximum height limits are measured at the front and rear setback lines. See Site Level Plan noting AHD levels for each lot.
COURTYARDS
Each lot must have open outdoor spaces. These are included in the setback allowances to primary [street] frontages, as well as private courtyards, which must be incorporated into the building design. The private courtyard location is as specified on the plans for each lot type. The private courtyards shall be habitable with a minimum dimension of 3.0 metres and a minimum total area of 20m².
Living spaces should have a visual link and direct access to the courtyards. Pergola and shade structures may be used to partly (no more than 50%) shelter these spaces, however enclosure is not permitted.
27 The Site Levels Plan denotes an AHD level of 52.1 at the front of the subject site and an AHD level of 52.5 at the rear of the subject site. It is also observed that the Site Level Plan contains a note which states that 'Site levels subject to final survey'.
28 The relevant section of the 'Specific Lot Guidelines' are as follows:
TYPE 5 SOUTH FACING LOTS
…
Front setbacks of 2.0 metres are proposed to create a more intimate streetscape, while nil setbacks to the rear of the lot allow maximum use of the small lot size.
The front 7.0 metre portion of the residence must be single storey and incorporate 1.5 metre side setbacks.
The double storey portion of the new residence may be located to the remaining rear section of the site, provided it does not encroach on the open courtyard space.
29 An indicative plan illustrating the setback requirements together with a diagram illustrating building heights has been included in the Guidelines and is attached as 'Annexure 1'. As can be seen from the note on the illustration, the diagram is indicative only, and is designed to illustrate the potential building envelope determined by the site specified setbacks.
30 It was agreed by the parties and the experts that references to single storey and double storey in the indicative plan at the top of the page in Annexure 1 should be the other way around and so to avoid confusion the Tribunal has made that amendment on Annexure 1.
Residential Design Codes (R-Codes)
31 The RCodes are also of relevance in the matter.
Parties positions
32 From the start of the hearing it was clear that both parties agreed that the Guidelines referred to above was the principal planning instrument controlling development in the Ocean Mia estate and which contain detailed development controls.
33 The introduction to those Guidelines states:
The development site is located in City Beach, bounded by The Boulevard and Kalinda Drive, immediately west of Bold Park. The architectural styles in the area range from houses constructed in Floreat in the 1930s through to the contemporary development in City Beach. The area also features buildings designed in the Modernist style, dating from the 1950/60s. Set in open gardens these residences contribute to the existing urban setting.
These guidelines include development standards specific to the subdivision design and the character of the area in general. They provide a degree of certainty for property owners as to what they can expect for their own home, as well as for those being built around them.
Some of the standards are prescriptive, to which Council will adhere. Other provisions within the guidelines are set down to encourage property owners to think about the area in which they have chosen to build; their street; their neighbours; as well as to pursue sustainable building principles.
Unless otherwise determined by the Council, development must be in accordance with these guidelines.
34 What is unusual in the current application is that there is an estate that has been planned and designed in a particular manner in respect of single residential dwellings of which over 90% have already been built. All of those dwellings having been designed, approved and built under the parameters of the same Guidelines against which this application is to be judged.
Third storey
35 One of the principle points of difference that has arisen in the matter was set out in the respondent's first reason for refusal, which stated:
The design presents as a three storey form and is not in double storey form. The Ocean Mia Design Guidelines permit only mezzanine floors or lofts within the prescribed building envelope of a double storey form.
- The other three reasons for refusal all closely relate to that issue.
36 In their opening statements to the Tribunal counsel for both the respondent and the applicant addressed that issue directly and outlined their respective positions:
Respondent's counsel
… It has certainly, as I say, been the case that these design guidelines have been, indeed, primary instrument for development control in this estate.
… [F]or present purposes one feature of these guidelines is its consistent and one might even say relentless references to double-storey or twostorey building forms[.]
… [O]ne thing the design guidelines are clear on it is that twostorey or doublestorey height is what is contemplated for these single house lots. …
… There's no dispute that the building is three-storey building and the respondent says the primary issue is whether that departure from the guidelines should be permitted, irrespective of whether or how to measure building height and whether it is 8.5 metres more or less.
(T:2325; 16.05.17)
- In finalising its opening submissions respondent's counsel submitted:
… What the respondent says very strongly is that it's evidence that the application historically of the guidelines has produced an estate with a very particular character and build form and the tribunal will, I think, see that very clearly from the site visit.
This development will be, or is this lot is the last undeveloped type 5 lot and, in fact, it's one of the few remaining undeveloped single house lots in the estate. The respondent says that there has been a clear adherence to the double-storey from development standard set by the guidelines and it would be inappropriate and not in accordance with orderly and proper planning to depart now from that in this case.
(T:26; 16.05.17)
It's accepted by the applicant that the outline development plan and the ocean … design guidelines are relevant considerations in the tribunal's assessment and determination of this application[.]
… we say that it is possible and, indeed, appropriate, for this development to be considered as compliant with the objectives, the spirit, the intent and, indeed, the key provisions of the Ocean Mia design guidelines[.]
… we accept that ours is a three-storey. The reason it was approved on five separate occasions, is because double-storey, or two-storey, on page 7, means a building of up to 8.5 metres.
… the approach taken by the Town, that we are precluded from having this building because it's three storeys, when their own document specifically allows a double-storey building to be up to 8.5 metres in height.
… as to what can be expected from neighbouring development, the answer is you can expect a building up to 8.5 metes high, because that's what the guidelines say. Or you could build a two-storey building 8.5 metres high. Or you could build a two-storey building with a loft, 8.5 metres high. What we say is the planning reality of that is we could build the same building in a volumetric sense over two storeys. But we've chosen, for our own personal reasons, to do it over three levels, but still within the 8.5 metre height rule.
(T:27 & 31-32; 16.05.17)
- In reinforcing that issue counsel for the applicant further submitted:
What I'd say, also, about page 27 is that you'll see that what's depicted is consistent with respect with my submission about how you look at bulk and scale. You look at bulk and scale, not by reference to the number of storeys in a simplistic sense. You look at it by reference to the volumetric analysis, which is a function of two inputs; height and setback. And that's what's depicted in that diagram. There is no contest that we are within the setbacks. On our evidence, we are within the 8.5 metre height limitation, or 8 millimetres over it. Therefore, we have a building which conforms with the diagram for a type 5 lot on page 27. And that, we say respectfully, is the end of that. There can be no argument against the fact that we sit within that volumetric analysis.
(T:33; 16.05.17)
37 A further point of difference is the location of the proposed courtyard in respect of which the respondent's counsel stated:
... The applicant's proposal is to move that courtyard forward so it's adjacent to the single-storey portion, the front effectively. …
… [T]he objectionable element of moving the courtyard is that the void which the design guidelines contemplate the courtyard will create is effectively is entirely filled by a three-level building. That will serve to emphasise the bulk and scale and incongruity of the building as proposed in its setting[.]
(T:25-26; 16.05.17)
- In respect of the issue of the courtyard counsel for the applicant submitted:
… We also reject the assertion that the location of the courtyard inappropriately contributes to bulk and scale[.]
(T:35; 16.05.17)
38 It was clear to the Tribunal from those submissions and from the evidence led by the parties that the principle issue for determination was whether the bulk and scale of the proposed development is acceptable keeping in mind:
i) the height of the proposed building;
ii) the two storey versus three storey argument; and
iii) the location of the courtyard.
Evidence
39 The Tribunal received planning evidence from three planners, namely:
1) Bronwyn Slater, a town planner who had carried out a preliminary analysis on behalf of the respondent;
2) Mr Steve Allerding, a town planner called by the applicant; and
3) Mr Joe Algeri, a town planner called by the respondent.
40 Both Mr Allerding and Mr Algeri filed statements of evidence with the Tribunal together with a joint statement following their conferral. They both also gave oral evidence concurrently and were questioned by both counsel and the Tribunal.
41 Ms Slater was not called by either party but was subpoenaed by the applicant to give evidence in respect of her initial assessment which she had carried out on behalf of the respondent.
42 It was clear to the Tribunal from the questioning of Ms Slater that the assessment she had undertaken was a desktop assessment with no site visit being undertaken. In the Tribunal's view that assessment could at best be described as a tick-box exercise and the Tribunal found Ms Slater's explanations to be of limited value and of little weight.
43 However, both Mr Allerding and Mr Algeri in their principle witness statements, their joint witness statement and in oral evidence dealt in detail with the principal issues for consideration outlined above.
44 Although visual privacy had also at one point been raised as an issue, it was clear by the close of proceedings that neither Mr Allerding nor Mr Algeri had any concern in respect of visual privacy and it was not a matter that the respondent in the Tribunal's view sought to maintain. The Tribunal will therefore not deal with that matter further.
Consideration
45 At page 29 of the unconfirmed Council minutes dated Tuesday 20 December 2016 located at tab 12 of the respondent's section 24 bundle the respondent's officers' report to Council succinctly outlined the two principle issues under consideration, namely the third storey and the relocation of the courtyard. It stated:
The Guidelines encourage 'stepped' forms, and while the upper floors are set back in accordance with the Guidelines, the second floor sits directly over the first floor. This increases scale and bulk of the dwelling as seen from the street. It states that within the double storey forms, mezzanine floors and lofts are permitted, however, the proposed second floor (third storey) is built to the side and rear lot boundaries. It should be noted that three storey dwellings have been approved within the Ocean Mia Development, however, a number of these were approved as much smaller structures and were not built to the maximum building footprint permissible for the first floor. In these instances, the third storeys were not built boundary to boundary and were setback from at least one side boundary to reduce the amount of bulk on the streetscape and neighbouring properties. The guidelines state that new residences are to be a combination of single and double storey forms. Three and four level buildings are permitted for larger multiple house lots (types 6 and 7). It is considered that a third level can be supported provided that it is much smaller in scale to the first floor and complies with the maximum stated building height.
46 The Tribunal notes as was pointed out by counsel for the applicant that in the following pages of those minutes further amendments to the proposal were made by the applicant including amongst other things setting back the bedroom on the third storey further from the front boundary following which the officers of the respondent were of the view that the application could be supported and recommended approval. However, as outlined earlier, Council refused the application when it came before them for consideration.
47 The Tribunal notes the applicant's submissions in respect of the overall height allowable, being 8.5 metres, and that the proposed development is within that height. Although at the outset it appeared the respondent was of a different view during the hearing it became clear that if there was any portion of the building above that height it was by only a few millimetres and not an amount which on its own would cause the application to be refused.
48 Moving on therefore to the two storey versus three storey issue, Council for the respondent asked Mr Allerding and Mr Algeri the difference in appearance between a two storey and three storey residence. He stated:
SLARKE, MR: … if we have a development control which says you must have a twostorey form, but with a maximum of 8.5 metres in height, then that development control will give you a different built form outcome than a control which says you must have the threestorey form to a maximum 8.5 metres in height, won't it?
WITNESS, ALLERDING: Yes. There would be a difference in the appearance of it.
…
WITNESS, ALGERI: Yes.
(T:89; 17.05.17)
- However, when counsel then asked:
SLARKE, MR: … another consequence of that is that the three-storey form with a maximum of 8.5 metres will tend to be bigger in scale and bulk, won't it …?
Mr Allerding replied:
WITNESS, ALLERDING: … it comes down to a question of choice[.]
While Mr Algeri simply answered
WITNESS, ALGERI: Yes.
(T:90; 17.05.17)
50 The details of each of those five approvals were set out in a table at page 2 of tab 17 of the respondent's section 24 bundle, a copy of which is annexed as 'Annexure 2' to these reasons.
51 Two corrections should be noted to that table which were explained by Mr Algeri, in his oral evidence which are that under the general heading 'Area (metre square)' in the third column headed 'third floor' the figure of 96 for Lot 511 should be 89 and in the same column the figure for Lot 512 which is approved but not yet built the figure should be 96 rather than 84 as stated.
52 The applicant's proposed development is outlined as the first lot listed under the table, Lot 566.
53 In dealing with those five developments counsel for the respondent took the planning experts to page 49 of the October 2016 Council minutes which were at tab 9 of the respondent's section 24 bundle which stated:
It should be noted that threestorey dwellings had been approved within the Ocean Mia development, however, a number of these were approved as much smaller structures, and were not built for maximum building footprint permissible for the first floor. In these instances, the third storeys were not built boundary to boundary, and were set back from at least one side boundary to reduce the amount of bulk on the streetscape and neighbouring properties.
(T:93-94; 17.05.17)
- Counsel for the respondent put to both planners:
That's what the officer report said, and that is borne out, is it not, by the calculation in the table at tab 17 of the bundle relating to the other third [storey development].
WITNESS, ALGERI: … yes[.]
WITNESS, ALLERDING: 'Well, I don't know if they relied on that, but, yes, I think that is reflective of what they are suggesting'.
(T:94; 17.05.17)
55 It is also noted that under 'Building Height' in the ODP it states:
Building heights throughout the subdivision are to be 2 storeys for single residential[.]
56 Under the heading 'Planning' at page 7 of the Guidelines it states:
Within the double storey forms, mezzanine floors and lofts are permitted within the prescribed building envelope.
57 From an examination of the table in Annexure 2 it would appear that the proposed third storey, although within the 8.5 metre height limit, is greater in area than any of the other areas previously approved above a second storey and its front setback is approximately 5 metres less.
In respect of the issue of the front setback counsel for the respondent asked the experts:
SLARKE, MR: And all of the other third levels are set back considerably further from the street than is proposed here, aren’t they?
Mr Algeri answered:
WITNESS, ALGERI: Yes.
And Mr Allerding stated:
WITNESS, ALLERDING: … yes, they do have a setback. Yes.
(T:96; 17.05.17)
The Ocean Mia subdivision has been divided into separate types of housing lots, determined by the orientation of the lot. Essentially there are seven types of housing lot:
1. West Facing Lots
2. North Facing Lits
3. North-East Facing Lots
4. East Facing Lots
5. South Facing Lots
6. Multiple Dwelling Lot
7. Multiple Dwelling Lot
Specific guidelines have been determined for each lot in terms of Setbacks and Building Height. General guidelines also apply, in terms of Character, Appearance, Building Form & Scale, Roofs, Courtyards, Materials, Solar Access and Energy Efficiency.
59 The proposed development is one of the Type 5 'south facing lots' of which there were 12 in total.
60 Attached as 'Annexure 3' to these reasons is a table containing the relevant details of all 12 south facing lots, 11 of which have already been built with the proposed development on Lot 566 being the remaining lot to be developed. That table appeared in the section 24 bundle at page 3 of tab 17 immediately following Annexure 2 referred to above.
61 From that table it can be seen that the total floor area being built over the three proposed storeys for Lot 566 at 431m2 is larger than any of the other Type 5 lots.
62 Turning then to courtyards, Type 5 lots have Specific Guidelines in respect of courtyards which state:
The double storey portion of the new residence may be located to the remaining rear section of the site, provided it does not encroach on the open courtyard space.
63 As referred to earlier in the present case the location of the courtyard has been moved forward for reasons that were generally agreed as better solar access however, portions of the second and third storeys overhang part of the courtyard.
64 In dealing with that matter in closing counsel for the applicant stated:
It was accepted by the witnesses, both expert planners, and Ms Slater, that the location proposed gives effect to that objective and, in fact, the outcome, if we followed the location in the guidelines, would lead to an inferior outcome, with respect to solar access. The trade-off is the additional bulk and scale. So that's why we say it's appropriate to depart from the formula in the guidelines with respect area of noncompliance.
(T:23; 30.05.17)
65 Counsel for the applicant also addressed the planning issues generally in closing and stated:
… [M]y learned friend and I are not too far apart in that the applicant accepts that this is a special control area and that, pursuant to the outline development plan which I think is loosely referred to as a structure plan, in the context of these proceedings, one has regard to the Ocean Mia design guidelines to inform the exercise of discretion in relation to the proposals for this estate.
(T:1718; 30.05.17)
66 In addressing the issues of storeys counsel for the applicant submitted:
… What the guidelines are clearly saying is that this notion of storeys that might be relevant in a plethora of other cases that my learned friend refers to are of no meaning. They're of no significant, because what these design guidelines say is you have a look at this diagram and providing you can fit your building, your doublestorey building, with some additions on top of it with in the 8.5, within the set-backs, then it potentially is a compliant building.
(T:19; 30.05.17)
67 In referring to exhibit 14 which included a number of montages showing what the proposed dwelling might look like when developed which had been prepared by an expert on behalf of the applicant, counsel for the applicant submitted:
… [W]hen one looks up the street, and if I take you to the third page of that, you see yes, the proposed development is taller than the other two buildings that you can see in that particular photo frame, or that render, but it's not one that is dominating them to a very large extent and it is, as we say, within the permissible guidelines.
(T:24; 30.05.2017).
68 It is not therefore whether a development such as the applicant's cannot be approved, the question is should it be approved in the exercise of discretion?
69 As outlined earlier, the applicant through counsel urged the Tribunal that effectively once the building is within a 'volumetric analysis' as against the indicative diagram on page 27 of the Guidelines (attached as Annexure 1) then from a bulk and scale perspective that 'is the end of that'.
70 With respect the Tribunal does not agree it is that simple. If it was mere mathematical compliance with the indicative diagram that is all that is required, then a simple tick box exercise would be all that is necessary. However, the Tribunal (and Council before it) is dealing with an estate which has specific guidelines to amongst other things reduce the apparent scale of new residences when viewed from the street.
71 The Tribunal acknowledges the reference at page 7 of the Guidelines outlined above that states:
Within the double storey forms, mezzanine floors and lofts are permitted within the prescribed building envelope.
- and that appears to have been more or less what has been approved in the other five approvals, all of which it is noted were in lot types other than Lot 5.
72 As referred to earlier when put to the experts by counsel for the respondent that:
… all of the other third levels are set back considerably further from the street than is proposed here, aren't they?
(T:96; 17.05.17)
- both experts confirmed that was in fact the case and as Annexure 2 confirms all of the other third levels are set back a distance in excess of 5 metres as against the proposed development.
73 This is important as the impact of the proposed development on streetscape is a relevant consideration as recognised by Mr Algeri and Mr Allerding in their joint statement at paragraph 8 under the heading 'streetscape' when they stated:
The experts agree that this consideration is relevant in the context of concerns raised by the respondent with respect to the appearance of the development from the street.
74 Counsel for the applicant put the issue of the third storey setback to Mr Algeri:
McQUEEN, MR: So the third storey is almost a metre behind the second storey.
- Mr Algeri replied:
WITNESS, ALGERI: But that wouldn't add to the relief, in my view.
76 Although when it was put to them that the three storey form with a maximum of 8.5 metres would tend to be bigger in scale and form, Mr Algeri agreed whereas Mr Allerding stated, that it came down to a question of choice.
77 The Tribunal is cognisant of its responsibility when applying planning policy such as the Guidelines and that the existence of the policy cannot replace the discretion of the decision maker in that the policy should not be inflexibly applied regardless of the merits of the particular case (see: Clive Elliott Jennings & Co Lty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433 at [24] and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196.
78 In the present case both parties accept significant weight should be given to the Guidelines which state at page 6 under heading 'building form and scale' that:
The building form to the primary frontage of each lot is to be single storey, with a two storey portion located to the rear.
- One of the reasons for that requirement was then explained in the following sentence which stated:
This will reduce the apparent scale of the new residences when viewed from the street[.]
And under the heading 'appearance' the Guidelines stated:
… The lowpitched roofs, wide eaves and linear plans will contribute to an overall horizontal emphasis and with stepped forms, the buildings will appear to hug the ground.
80 Furthermore, as stated by Mr Algeri the setback of the third storey by less than a metre from the second storey 'wouldn't add to the relief''.
81 The Guidelines are clearly a flexible instrument and departures from them are allowed. With the repeated references in the Guidelines to double storey and two storey it may well be that a full third storey was not envisaged but neither was it prohibited and a large two storey residence could itself cause bulk and scale issues. However, what is clear is that buildings that reduce the apparent scale when viewed from the street are the preferred form of development and the proposed development does not achieve that outcome.
82 The Tribunal is satisfied that the bulk and scale of the proposed development is too great a departure from the form, scale and appearance the Tribunal believes is sought by the Guidelines and which would appear to have been successfully achieved in the built form approved in the Ocean Mia estate todate.
83 The proposed development would be out of context and not in keeping with the immediate streetscape or the streetscape of the locality or the existing double storey buildings all of which have been approved and built in line with carefully crafted Guidelines applied over a long period of time.
84 To approve the development as proposed when nearly all of the single houses in the estate and all of Lot 5 type lots have been approved and completed would be in the Tribunal's view inappropriate and not in line with orderly and proper planning.
85 In the circumstances, the respondent's decision of 20 December 2016 will be affirmed and the application for review dismissed.
Orders
1. The respondent's decision of 20 December 2016 is affirmed.
2. The application for review is dismissed.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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