Wallace and City Of Stirling - [2012] WASAT 133

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WALLACE and CITY OF STIRLING [2012] WASAT 133

MEMBER: MS R MOORE (MEMBER)

HEARD: 5 APRIL 2012

DELIVERED : 27 JUNE 2012

FILE NO/S: DR 372 of 2011

BETWEEN: GARY WALLACE
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning Development application Alterations and additions to 1928 Interwar Californian bungalow Addition of games room Additions to existing carport Alterations to front entry porch Heritage protection area of Mount Lawley (East) Character Guidelines Mt Lawley, Menora & Inglewood Impact on existing dwelling and streetscape

Legislation:

City of Stirling Local Planning Scheme No 3, cl 6.6, cl 6.6.1, cl 6.6.3, cl 10.2, cl 10.3.2, cl 10.9
Metropolitan Region Scheme
Planning and Development Act 2004 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: N/A
Respondent: N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the City of Stirling's decision to refuse development approval for alterations and additions to an existing dwelling and carport at No 133 (Lot 159) Fifth Avenue, Mount Lawley.
The existing dwelling is a modest Interwar Californian bungalow constructed circa 1928 and located within the Mount Lawley (East) Heritage Protection Special Control Area. The development application was for the addition of a games room to the rear of the dwelling (replacing a section of existing carport), an extension of approximately 5 metres to the existing carport and an extension of 850 millimetres to the front entry porch.
The original application to the Tribunal was for a review of a deemed refusal. Following mediation, the City of Stirling reconsidered its decision in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) and approved the games room addition but refused the carport and porch extensions.
The Tribunal found that the proposal did not satisfy the City of Stirling's Character Guidelines for two main reasons which relate primarily to the carport extension. Firstly, the proposed portal frame construction, the roof sheeting setback of 700 millimetres from each side of the structure, and the ceiling height of 3.5 metres all combined to produce a carport structure which would appear lightweight and top heavy against a dwelling designed to be 'ground hugging'. Second, by extending the line of the carport and the porch to the line of the front room, the entry porch would lose its significance as a separate element, and the staggered threedimensional built form of the existing Interwar dwelling would become lost.
The Tribunal therefore determined that the proposed alterations and additions did not satisfy the City of Stirling's Character Guidelines, and the application for review was dismissed and the decision of the City of Stirling to refuse the alterations and additions was affirmed.

Introduction

These proceedings involve an application brought by Mr Gary Wallace (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision of the City of Stirling (City or respondent), dated 14 February 2012, to refuse alterations and additions to No 133 (Lot 159) Fifth Avenue, Mount Lawley (site).

The City's decision

The applicant submitted a development application for alterations and additions to the subject site on 4 August 2011. He did not receive a decision from the City within 60 days and made an application to the Tribunal on 2 November 2011 for a review of a deemed refusal. The Tribunal referred the matter to mediation, following which the respondent was invited to reconsider a modified proposal in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The respondent considered the amended plans at its meeting on 7 February 2012 and resolved the following:
a.The proposed carport and porch additions at Lot 159, House Number 133, Fifth Avenue, Mount Lawley be REFUSED as the proposed additions do not comply with the requirements of the City's Character Guidelines; and
b.The proposed games room addition at Lot 159, House Number 133, Fifth Avenue, Mount Lawley be APPROVED subject to the following conditions:
i)The proposed eaves to be set back a minimum of 0.5m from the boundary; and
ii)Stormwater from all roofed and paved areas to be collected and contained on site.
The matter proceeded to a final hearing which included a view of the subject site in the company of the parties, their representatives and the respondent's heritage expert.

Proposed development

The modified proposal is now the subject of this review. The amended plans considered by the respondent on 7 February 2012, and now before the Tribunal, appear to propose a new carport with a different form of construction to that of the existing carport. This was discussed with the parties during the hearing and at the site view.
The respondent was of the view that the entire existing carport was to be removed and that this application was for a new 13 metre long carport. The applicant stated that he intended to demolish the rear section of the existing carport to enable the construction of the new games room, but retain the remainder of the existing carport and construct a new section of carport approximately 5 metres in length in front of this.
While acknowledging that the amended plans do include the words 'new carport', the Tribunal and the parties took the opportunity during the hearing to clearly identify the area of new carport and that area of carport intended to be retained.
The Tribunal, as requested by the applicant, has considered this development application to include the addition of approximately 5 metres to the front of the existing carport. The proposed development can be summarised as follows:
•the construction of a new games room, 4.95 metres by 9.05 metres, set back 750 metres from the side (southeast) boundary and adjoining the southeast corner of the existing dwelling;
•the addition of 850 millimetres to the front entry porch, which includes the removal of an existing brick pier and timber post and the addition in a new location of a new brick pier and column to support both the carport and porch roofs;
•the removal of the length of the existing carport currently occupying the area where the new games room will be located; and
•the extension of the existing carport involving the addition of approximately 5 metres in length.
The height of the carport extension is to match the height of the existing carport which is approximately 3.5 metres to the underside of the ceiling and 4.8 metres overall (to the apex). According to the drawings, the portal frames are to be located on the boundary (east) and adjacent to the existing dwelling (west), with the roof sheeting set back 700 millimetres on either side, providing approximately 4 metres in width centrally of roofed area. The roof sheeting is to match the roof sheeting of the existing dwelling in terms of material, colour and pitch (30 degrees) with a hip facing the street.
During the hearing, the applicant indicated that he was willing to redesign various aspects of the carport structure if that was considered more acceptable to the respondent. These aspects included the design and location of the supporting piers and the roof form that presented to the street (either a gable or hip). The applicant was keen to maintain the roof sheeting setbacks from both the side boundary and the dwelling in order to allow the established gardens to continue growing along the side of the house and along the side boundary fence. The height of the carport was not an aspect that could be varied as the carport is intended to house a boat on a trailer and a car, parked in tandem.
The extension of the porch involves adding 850 millimetres to the length of the porch so that it and the carport extension align with the front wall of the existing dwelling.

Site and locality

The existing dwelling to which these alterations and additions will be applied is located on a site which is rectangular in shape with a frontage of 15.15 metres to Fifth Avenue, a length of 41.52 metres and an area of 632 square metres.
This existing dwelling is a single storey Interwar bungalow constructed circa 1928. The dwelling is set back approximately 6 metres from the front boundary and 5.4 metres from the side (southeast) boundary. The dwelling has a staggered presentation to the street with an entry porch set back 850 millimetres from the front wall of the building; the entrance door set back a further 3 metres from the edge of the porch; and the existing carport set back approximately 1 metre from the line of the front door.
There have been modifications over time to the dwelling which include the following:
•rendering and painting of external façade;
•addition of steel framed carport to the side;
•single storey additions to the rear;
•installation of decorative bands and traditional plaster mouldings to the gables;
•replacement of roof tiles with corrugated iron roof sheeting;
•replacement of nonoriginal aluminium window with timberframed leadlight window to front room; and
•installation of concrete driveway and new openstyle fencing to front boundary.
According to Ms Nerida Moredoundt, a heritage expert appearing on behalf of the respondent, the dwelling demonstrates the design characteristics of an Interwar Californian bungalow notwithstanding these modifications made over time.
The site view included a view of both sides of Fifth Avenue between North Street and Clifton Crescent, and then on further to No 92 Fifth Avenue to view what appeared to be an overheight carport in the front setback area of an original dwelling. The view illustrated a number of alterations to original dwellings including second storey additions and some carports located in the front setback areas.

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme and Residential with a density coding of R40 under the City of Stirling Local Planning Scheme No 3 (LPS 3).
Part 6 of LPS 3 refers to special control areas which include heritage protection areas. The subject site is located in the Mt Lawley (East) Heritage Protection Area Special Control Area and the objectives of this area are set out in cl 6.6.1 of LPS 3 as follows:
a)To ensure the conservation and retention of buildings within the Heritage Protection Area Special Control Area dating from the early 1900s to the 1950s where the architectural style of the building is generally intact;
b)To ensure the retention of existing buildings referred to in (a) above to maintain the existing character of the streetscape;
c)To ensure that new buildings (where permitted), alterations, additions to existing buildings, carports, garages and front fences are in keeping with the heritage character of the area, respect the scale and proportions of surrounding buildings, and are designed to fit into the existing streetscape;
d)To maintain and improve existing street trees, grass verges and front gardens; and
e)To retain mature trees wherever possible.
Clause 6.6.3 of LPS 3 states that all development shall conform with the objectives above and the local planning policy 'Character Guidelines Mt Lawley, Menora and Inglewood' (Character Guidelines).
Clause 10.2 of LPS 3 sets out the matters the respondent is to have regard to when considering an application for planning approval, and includes the following:
…
c)any approved statement of planning policy of the Commission;
…
f)any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.2.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme;
…
h)the conservation of any place that has been entered in the Register within the meaning of the Heritage of Western Australia Act 1990, or which is included in the Heritage List under Clause 7.1, and the effect of the proposal on the character or appearance of a heritage area and the following:
i)the effect of the proposed development on the heritage significance of the place;
ii)the measures proposed to conserve the heritage place;
iii)if the proposal involves demolition, whether the heritage place is reasonably capable of conservation, and whether or not the place is structurally sound;
iv)whether the character, design and aesthetics of any proposed replacement building and its relationships to character of adjacent buildings are appropriate.
…
n)the preservation of the amenity of the locality;
o)the relationship of the proposal 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 proposal;
Clause 10.3.2 of LPS 3 states that the City may impose conditions on a planning approval relating to:
…
b)the location and arrangement of development, including setbacks, coverage, open space and car parking areas;
c)design of buildings and associated development, including architectural character, floor levels, height, facades and roofing;
…
h)landscaping and/or the preservation of any existing vegetation;
…
n)retention or demolition of buildings and the repair, refurbishment and maintenance of premises.
Note: The conditions imposed by the Council on a planning approval should not change the nature of the application (for example, where an application is for 5 grouped dwellings a condition restricting the number of dwellings below five is not appropriate rather, the application should be refused).
Clause 10.9 of LPS 3 provides for the deemed refusal of an application. In this case, the application was deemed to have been refused as a determination was not made by the City within 60 days of receipt of the application.
Also of relevance to this review is State Planning Policy No 3.5 Historic Heritage Conservation (SPP 3.5). SPP 3.5 applies to places and areas of significance at both a State and local level.
Clause 6.2 of SPP 3.5 states that heritage areas are designated under local planning schemes and should always be designated on the basis of a clear statement of significance and a clear identification of the significant physical fabric in the area. When designating a heritage area, the local government is required to adopt a local planning policy that sets out the objectives and guidelines for conserving the significant heritage fabric of the area.
The Mount Lawley (East) Heritage Protection Area is, relevantly, a heritage protection area for the purposes of SPP 3.5. The City's Character Guidelines are an adopted planning policy and contain a clear statement of significance for the Mount Lawley (East) area.
Specifically in relation to development within a heritage area, cl 6.6 of SPP 3.5 provides the following development control principles:
•Development within a heritage area should respect and complement the heritage significance of the area as identified in the local planning policy. A respectful design approach gives special consideration to the siting, scale, architectural style and form, materials and finishes of the proposed development in relation to its neighbours, without copying historic detailing or decoration.
•Alterations and additions to existing buildings should be designed and sited in a manner that respects and complements the heritage significance of the area.
•A general presumption should apply in favour of retaining buildings that make a positive contribution to the significance of the area.
…
•Any new buildings erected in heritage areas should be designed and sited in a way that respects and complements the heritage significance of the area. New construction that is imaginative, well designed and harmonious should not be discouraged.

The issues

The respondent submitted a statement of issues, facts and contentions which set out the issue to be determined by the Tribunal as follows:
Whether planning approval for the proposed alterations to the front of the dwelling and the addition of a carport at [the subject site] should be granted if, as the City contends, the additions would be contrary to the requirements of the respondent's Character Retention Guidelines for the Heritage Protection Area Special Control Area of [LPS 3].
The applicant responded that the carport already exists and was approved by the respondent in 1991 and that this application is for alterations to this carport and the front entrance porch. He also stated that the application for the new games room had to be considered together with the carport extension and not separately, as the games room depended on the approval of the carport extension.
The Tribunal will determine whether the proposed alterations and additions to the dwelling on the subject site satisfy the City's Character Guidelines.

Do the proposed alterations and additions satisfy the City's Character Guidelines?

The key of objectives of the City's Character Guidelines are to:
•Ensure the retention of buildings within the Heritage Protection Areas dating from the early 1900s to the 1950s where the architectural style of the building is generally intact;
•Ensure that new buildings, alterations and additions to existing buildings, carports, garages and front fences are in keeping with the heritage character of the area, respects the scale and proportions of surrounding buildings, and are designed to fit into the existing streetscape;
•Maintain and improve existing street trees, grass verges and front gardens;
•Retain mature trees wherever possible; and
•Provide a framework for the assessment of development applications in line with the above points.
The subject site is located in the Mt Lawley (East) Heritage Protection Area which is identified as an area of considerable significance in the Character Guidelines as follows:
Mt Lawley (East) is a good example in Perth of a substantially intact residential area characterised by large and medium sized homes from the early twentieth century and interwar period, many of high architectural quality, in established landscaped gardens.
The area has aesthetic, historic and social significance for the following reasons:
•Typical example of rectangular grid road and subdivision pattern[.]
•Good examples of housing from the early 1900s and inter-war period including some very good examples of Federation bungalow and Californian bungalow style houses.
•Street design including the general street layout including grass verges and street trees.
•Garden layout, design and quality.

Ms Moredoundt described the dwelling on the subject site as a modest Interwar bungalow that demonstrates the specific design characteristics of an Interwar Californian bungalow which include: a flat top chimney; a porch supported on bulky masonry piers; street facing gables with barge boards; and exposed roof timbers. It was Ms Moredoundt's evidence that despite modifications made over time, 'the setback, form and scale of the subject place remain largely as constructed and the original design intent of an Interwar bungalow is still clearly evident' and the dwelling makes a positive contribution to the streetscape and the area.

In regard to the streetscape of this section of Fifth Avenue, Ms Moredoundt was of the view that there is a high degree of intactness as most of the original homes are visibly present albeit with some modifications, including some two storey additions and non-original garages and carports. Some of the modifications have been positive; for example, retuckpointing of façades and replacement of original elements such as barge boards and timbers. Other changes, such as the new development that has occurred on the corner lots, do not contribute to the historic landscape; neither does the single 1970s house which should be considered to be neutral or 'not intrusive' according to Ms Moredoundt.
Ms Moredoundt considered the most significant impact on the streetscape to be the introduction of non-original garages and carports and emphasised the importance of the Character Guidelines in trying to limit their impact on the streetscape. The Character Guidelines contain specific objectives in regards to carports and garages as follows:
•Prevent carports, garages, and parking areas from dominating the streetscape;
•Ensure that the appearance of carports, garages and parking areas are in keeping with, and respectful to, the residence to which they belong;
•Reduce the impact of vehicle access and parking on the existing streetscape by ensuring that any new vehicular access is obtained from the rear of the property, where possible; and
•Reduce the impact of parking structures on the existing streetscape by ensuring that such structures are located at the rear and side of properties.
The Character Guidelines also contain the following requirements for the location, setback and design of carport and garage structures:

Location and Setbacks
•Carports and garages shall be located to the rear of dwellings, or alternatively, to the side of dwellings set back behind the predominant building line;
•Garages shall be set back a minimum of 0.5m behind the predominant building line;
•Garages shall not be located in front setback areas;
•Carports may be considered in front setback areas, but only where no alternative locations exist, a minimum setback of 1.5 metres from the primary street is maintained, and where the proposal meets the objectives of these guidelines. Such carport shall not be fitted with any style of roller or tiltup panel door; and
•Carports and garages should be set back from the side boundary where possible.

Design
•Carports and garages shall be of the same style, design and materials, roof pitch (to a minimum of 25 degrees) and form to the existing residence to which it belongs;
•Where carports are considered appropriate in front setback areas (refer above), carports shall be open in style and allow an unobstructed view of the dwelling from the street;
•Carports and garages shall have a maximum width of 5.5 metres (internal or onethird the frontage of the dwelling (whichever is the lesser); and
•Carports and garages shall have a maximum plate height of 2.7 metres.

In regards to the proposed carport extension, the applicant argued that the length and height were the minimum required in order to house his boat and vehicle and that the location was the most appropriate, being at the side of the existing dwelling.
The applicant said that he was balancing a number of issues in locating the carport in the proposed position, including limiting the impact of the new games room on the neighbour; maintaining as much of the rear garden as possible; and ensuring that the carport serves the purpose of housing the boat and motor vehicle.
Ms Moredoundt responded that the extra height required for the boat could be accommodated by locating the carport to the side of the dwelling but that it should not come forward of the predominant building line which, in this case, is the line of the front door. With regard to the construction and materials of the carport, Ms Moredoundt said that the Interwar Californian bungalow style was a 'ground hugging' style and any modifications to the design should include square posts (either 100 millimetres by 100 millimetres or 150 millimetres by 150 millimetres) on brick piers and a gable to the street rather than a hip.
The applicant questioned Ms Moredoundt about the weight to be given to built form instead of gardens. Ms Moredoundt responded that more weight should be given to built form because, in this case, it is the built form that gives the area its significance, as Mt Lawley (East) is not considered to be a garden suburb, unlike Menora.
It was also the applicant's contention that the City has been flexible in the application of the Character Guidelines to other developments in Fifth Avenue and the wider area. On the site view, he drew the Tribunal's attention to various developments including extensions to verandahs, carports in front setback areas and second storey additions. It was the respondent's position that each of the post2006 examples (some development had occurred before the introduction of the Character Guidelines) had been assessed on its merits and against the Character Guidelines. Ms Moredoundt was of the view that the application of the Character Guidelines has changed over time and that since their introduction in 2006 the City's officers had become 'more cognisant' of their requirements. She agreed with the respondent that each development application was different and was to be assessed with reference to its own specific circumstances.
The Tribunal agrees with the applicant that the Character Guidelines are to be applied with a degree of flexibility taking into account the proposed development in the context of the specific site and the streetscape, but in this case, finds no cogent reason why the policy should be departed from.
The relevant planning framework in this matter which includes SPP 3.5, the City's Scheme and the Character Guidelines, gives great weight to maintaining the existing character of the streetscape in heritage protection areas and ensuring that alterations and additions (including carports) are designed to respect the scale and proportions of the surrounding buildings.
The Tribunal understands the need for the carport to be higher than that allowed for in the Character Guidelines and agrees that the location to the southeast side of the existing dwelling is appropriate as it minimises the impact on both the existing dwelling and the streetscape. The Tribunal can also appreciate the balancing act for the applicant in trying to retain existing mature vegetation to the rear and side of the property and limiting the impact on the adjacent neighbour while providing improved accommodation for his own needs.
The proposed development includes a new games room and alterations and additions to the entry porch and an existing carport. The Tribunal understands that the three elements are interrelated but will address the carport and porch separately as far as they impact on the existing character of the streetscape.
The Tribunal agrees with Ms Moredoundt that the proposed carport extension is not in keeping with the heritage character of the area and does not respect the scale and proportions of the surrounding buildings for the following reasons.
Firstly, the proposed portal frame construction, the roof sheeting being set in 700 millimetres from each side of the structure, and the ceiling height of 3.5 metres all combine to produce a structure which will appear lightweight and top heavy against a dwelling designed to be 'ground hugging'.
Second, by extending the line of the carport and the porch to the line of the front room, the entry porch will lose it significance as a separate element and the staggered threedimensional built form of the existing Interwar dwelling will become lost.
The applicant advised during the hearing that he was prepared to make stylistic changes to the design of the carport which could include materials and pier form and location, but not changes to the height or setback of the carport. The Tribunal is of the opinion that it is the extra height required to accommodate a boat (rather than just motor vehicles) combined with the nontraditional design and the setback forward of the front door that creates the appearance of a structure that is not in keeping with the existing dwelling. The impact of this structure on the existing streetscape could be reduced if the structure was set back behind the predominant line which, in this case, is the line of the front door. Or alternatively, the proposed carport would have a very different impact on this relatively intact streetscape if it had a 2.7 metre plate height as provided for in the Character Guidelines.
In regards to the proposed addition to the front entry porch the Character Guidelines contain the following objectives for alterations and additions:
•Retain the original building with minimum alterations;
•Conservation works should retain and enhance the original character of the building; and
•New additions to existing buildings must reflect the heritage character of the area and the style of the existing building.
And, specifically, with regards to built form and design, '[a]dditions shall reflect the architectural style (eg; Federation Bungalow or Federation Queen Anne), form, colour and materials of the original dwelling …'.
The applicant said the reasoning behind the proposed extension to the entry porch was because the existing masonry pier and timber post required replacement, the extra 850 millimetres would prevent the sun from shining through the glass panels in the front door, and the verandah would align with the carport extension. Ms Moredoundt said that the entry porch should be retained as is because it was an original feature and there was no compelling reason for it to be altered. The Tribunal agrees with Ms Moredoundt and finds that in these circumstances the entry porch should not be extended as the 850 millimetre setback from the front room enables the entry porch to be read as a separate threedimensional element and that extending it and the carport to the same line will remove the staggered presentation that the dwelling currently has to the street.
As the applicant pointed out, the games room location is the driving force behind the requirement for the carport extension to be forward of the predominant building line of the existing dwelling. According to the applicant, the games room location has been set by the desire to maintain existing mature gardens to the rear of the site and to limit the impact of the building on the adjacent neighbour. As discussed earlier, the Tribunal understands this reasoning but in the circumstances of this case finds that there will be an adverse effect on the existing character of the streetscape and the existing dwelling resulting from the location, bulk, form and appearance of the proposed development.

Conclusion

For these reasons, the Tribunal determines that the proposed alterations and additions do not satisfy the City's Character Guidelines. The application for review should therefore be dismissed and the decision of the City to refuse the alterations and additions to the carport and entry porch of the dwelling on the subject site should be affirmed.

Orders

1.The application for review is dismissed.
2.The decision of the City of Stirling dated 14 February 2012 to refuse to approve alterations and additions to No 133 (Lot 159) Fifth Avenue, Mount Lawley is affirmed.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER