WESTPLAN DESIGN AND CONSTRUCTION and CITY OF FREMANTLE - [2010] WASAT 60

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WESTPLAN DESIGN AND CONSTRUCTION and CITY OF FREMANTLE [2010] WASAT 60

MEMBER: MR J JORDAN (MEMBER)

HEARD: 21 AND 22 JANUARY 2010

DELIVERED : 22 APRIL 2010

FILE NO/S: DR 362 of 2009
DR 365 of 2009

BETWEEN: WESTPLAN DESIGN AND CONSTRUCTION
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning Development application Refusal of application for retrospective approval of development carried out Refusal of application for approval to complete the development Two storey addition at rear of house Development of deck above garage at rear boundary Development of pool and connecting walkway Objection by owner of house on adjoining lot to the south Height of proposed extension Impact of proposed extension Overlooking Impact on access to light and sunlight Application of provisions in town planning scheme Interpretation of Scheme provisions - Town planning Development Council decision giving direction to remove development carried out without planning approval

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 2, cl 2.3, cl 2.6, cl 4.2.1(a), cl 4.2.2, cl 5.1.1, cl 5.1.2, cl 5.2.2, cl 5.3.1, cl 5.8, cl 5.8.1, cl 5.8.1(b), cl 6.1, cl 6.1.2, cl 6.4.1, cl 6.4.2, cl 7.2.2, cl 7.5, cl 10.2.1, Sch 12, s 2, Sch 12 cl 4.1, Sch 12cl 4.2, Sch 12 cl 4.3, Sch 12 cl 4.3.4
City of Fremantle Town Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002)
Residential Design Codes of Western Australia (2005), cl 5.1, cl 6.3, cl 6.3.1 P1, cl 6.3.2, cl 6.3.2(A2), cl 6.7 A1.1, cl 6.7.1 A1, cl 6.7.1 P1, cl 6.7.1, cl 6.8, cl 6.8.1, cl 6.8.1 P1, Table 3 Category B, cl 6.9, Table 3, cl 6.9.1 A1, Table 2a
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)

Result:

DR 362 of 2009:
Application for review is allowed
Conditional approval is granted for the proposed development
DR 365 of 2009:
The application for review is allowed
Council's decision 2 requiring the removal of unauthorised development is deleted

Category: B

Representation:

Counsel:

Applicant: Mr A Lohman (Representative)
Respondent: Ms A Butterworth (Representative)

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: Allerding & Associates (Town Planning Consultants)

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In 2004, the City of Fremantle granted planning approval for two storey additions at the rear of a single storey house in Carnac Street in Fremantle. The development also included a rear garage with an alfresco eating area on the roof with a walkway across a terrace to the house. Development was commenced but not completed as required under the then Town Planning Scheme.
The applicant subsequently filed with the Tribunal two applications for review of further decisions issued by the City of Fremantle. One application was for review of the refusal by the City of Fremantle to grant development approval for both work already completed, inconsistent with the original planning approval, and for proposed work to complete an amended development proposal. The second application filed with the Tribunal was for review of a decision of the City of Fremantle directing the applicant to pull down and remove all unauthorised development.
The City of Fremantle was concerned with the impact the unauthorised development was having and the proposed development would have on the locality, and particularly on the house on the lot adjoining to the south.
The Tribunal has concluded that the proposed development satisfies the relevant provisions of the City of Fremantle's Town Planning Scheme and policies and the Residential Design Codes of Western Australia (2005). The application for review of the development refusal was upheld and the development granted conditional approval.
The development having been approved, the review of the City of Fremantle's decision requiring unauthorised development be removed was also upheld.

Introduction

Westplan Design and Construction (applicant) filed with the Tribunal applications for review of two decisions of the City of Fremantle (respondent, City or Council) in respect of development carried out and development proposed at No 33 (Lot 148) Carnac Street, Fremantle (site). The two applications for review were:
1)DR 362 of 2009: brought by the applicant pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the respondent to refuse an application for retrospective planning approval for development already carried out and for new development on the site. The development includes a two storey addition at the rear of the house, a garage with a storeroom attached and an alfresco eating area on the roof at the rear boundary, a walkway across a terrace connecting to the house and a 1.8 metre high fence of brick and limestone along the southern boundary; and
2)DR 365 of 2009: brought by the applicant against the decision of the Council that the landowners be advised to remove unauthorised development within 60 days of the date of the refusal. The unauthorised work included the metal frame of a partly constructed two storey addition; the storeroom and alfresco eating area attached to the garage; reconfiguration of walls; and terracing.
At a directions hearing on 7 October 2009, the Tribunal ordered that these two applications for review were to remain separate proceedings, but be heard together, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA).

The site and locality

The site has an area of 508 square metres, a frontage of 12.15 metres to Carnac Street at the eastern end and a rear boundary of 12.03 metres to a bitumen right of way at the western end. The site falls about 2.5 metres from front to rear. A single storey house on the site is set back 1.0 metre from each side boundary. Surrounding houses are mostly single storey residential, including No 35 adjoining to the south. There are four houses on the opposite side of Carnac Street that are two stories, and nearby on the same side of Carnac Street, No 29 Carnac Street and No 39 - 41 Carnac Street, have two storey additions at the rear. The house at No 31 Carnac Street has a two storey building adjacent to the rear boundary.

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme and is zoned Residential with a density coding of R30 under the City of Fremantle Local Planning Scheme No 4 (LPS 4). Clause 4.2.1(a) of LPS 4 sets out the objectives for the Residential zone as follows:
Development within the residential zone shall:
i)provide for residential uses … while recognising the limitations on development necessary to protect local character;
ii)safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area;
iii)encourage high standards of innovative housing design which recognise the need for privacy, energy efficient design and bulk and scale compatible with adjoining sites;
iv)recognise the importance of traditional streetscape elements to existing and new development;
v)conserve and enhance places of heritage significance the subject of or affected by the development; and
vi)safeguard and enhance the amenity of residential areas by ensuring that land use is compatible with the character of the area.
Clause 4.2.2 of LPS 4 provides that zoning objectives 'shall be read in association with the relevant planning area objectives cited in Schedule 12'.
The review site is identified in Sch 12 of LPS 4 as located within Local Planning Area 4 – South Fremantle (LP Area 4) and more particularly in Subarea 4.3.4. No specific 'objective' is listed for LP Area 4.
Clause 5.1.1 of LPS 4 requires that development comply with the provisions of LPS 4, and cl 5.1.2 requires that due regard be given to any relevant planning policies and design guidelines. Clause 5.2.2 of LPS 4 states:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes.
The Residential Design Codes of Western Australia (2005) (Codes) at cl 6.3 are concerned with setback from side boundaries, at cl 6.7 with building height, at cl 6.8 with visual privacy, and at cl 6.9 with overshadowing. Clause 5.3.1 of LPS 4 explains the relationship of the Codes to local planning areas identified in Sch 12 of LPS 4 as follows:
Where there is inconsistency between the Residential Design Codes and provisions contained in Schedule 12 (local planning areas) the provisions of Schedule 12 shall prevail to the extent of the inconsistency.
Clause 5.8 of LPS 4 is concerned with variations to development standards and requirements. Clause 5.8.1 of LPS 4 lists matters to be satisfied for height to be varied.
Clause 6.1 of LPS 4 lists special control areas which include local planning areas. Clause 6.1.2 of LPS 4 states:
… the provisions applying to the special control area apply in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme.
Clause 6.4.1 of LPS 4 states that the purpose of a local planning area is to 'protect and enhance locally desired character'. Clause 6.4.2 lists the requirements for local planning areas. Relevantly, these are:
(a)Schedule 12 describes the local planning areas in detail and sets out the purpose and particular requirements that will apply to each local planning area.
(b)Where there is conflict between the general development requirements of the Scheme and specific development requirements of local planning area, the provisions of the local planning area shall prevail.
(c)Where there is conflict between the general development requirements of the local planning area and specific development requirements of smaller areas within the local planning area, the more specific provisions shall prevail.
…
Clause 4.1 of Sch 12 in LPS 4 contains height requirements for the various zones within the sub-areas of LP Area 4. For the residential zone, it states 'all requirements as per the [Codes] … '.
Under Sub-area 4.3.4 of LP Area 4 of Sch 12, it states:
Despite the original general height requirements, development of land zoned residential shall be limited to two storeys.
Clause 4.2 of Sch 12 of LPS 4 provides that, in granting consent to the maximum heights, performance criteria which are listed are to be satisfied. The list criteria are addressed in the discussion of the issues below.
There was a clear difference between the parties on the height standards applicable to the proposed development. It was a submission of Mr Lohman for the applicant that the requirement that development be limited to two storeys at cl 4.3.4 of Sch 12 of LPS 4 prevailed over the general standards of cl 4.1 of Sch 12 and, therefore, the provisions of cl 6.7 of the Codes were not applicable. The applicant referred to cl 5.2.2 of LPS 4, which says that the Codes prevail unless 'otherwise provided' and said that cl 4.3.4 of Sch 12 does 'otherwise' provide. The applicant also referred to cl 5.3.1 of LPS 4, which provides that, where there is any inconsistency between the Codes and the provisions of Sch 12, the provisions of Sch 12 prevail, and said that there was consistency because cl 4.3.4 of Sch 12 referred only to number of storeys.
In support of its submission, the applicant referred to Local Planning Area 3 of Sch 12, which is concerned with North Fremantle, and to other subareas of LP Area 4 in South Fremantle. Mr Lohman pointed out that, for certain sub-areas, there was reference to both a wall height and to whether single storey, single storey with loft or two storey development was allowed. From this, he drew the conclusion that, for a sub-area of an LP Area in LPS 4, where it was considered necessary to mention both number of storeys and wall height, this was done. For LP Area 4, the reference at cl 4.3.4 was only to a height limit of two storeys. He said that, if wall heights were to be part of the control, then they would have been included in cl 4.3.4 of Sch 12 of LPS 4. The applicant acknowledged that, to allow two storeys, the requirements of cl 4.2 of Sch 12 would have to be satisfied.
Mrs Butterworth, who appeared for and was an expert planning witness for the respondent, disagreed with Mr Lohman. It was her submission that cl 4.3.4 of Sch 12 was not in conflict or inconsistent with the general provisions contained in cl 4.1 of Sch 12 and, therefore, both provisions apply and reference must be made to the height provisions at cl 6.7.1 of the Codes. Mrs Butterworth cited cl 6.7.1 A1.1 of the Codes, the acceptable development standard, which reads:
Buildings which comply with table 3 for category B areas, except where stated otherwise in a local planning policy or equivalent.
Table 3 of the Codes has a wall height requirement of 6 metres. Mrs Butterworth noted the use of the word 'despite' at the beginning of cl 4.3.4 of Sch 12 and referred to the definition of 'despite' in The Macquarie Dictionary, which includes 'in spite of or notwithstanding'. This she interpreted as being that, despite the general wall height requirement which is 6 metres, this shall not prevent development being for two storeys if performance criteria are met.
Statutory Interpretation in Australia (DC Pearce & RS Geddes, 6th Edition, 2006) at [12.4] states that the High Court, in AttorneyGeneral (Cth) v Oates (1999) 198 CLR 162 at 178; 164 ALR 393, at 403, has said that 'despite' is a synonym for 'notwithstanding'. Statutory Interpretation in Australia, also at [12.4], and citing authorities, says that 'notwithstanding' is to be interpreted by construing the section in which it is to be used without the word and only using the word if there is anything inconsistent with other sections so that the first sections is established as the primary provision. The Tribunal, with respect, has adopted the same approach.
Examination of Sch 12 of LPS 4 reveals that, where reference is made to wall heights and numbers of storeys for particular subareas, this is done because LPS 4 is setting a standard different from the standard of two storeys and 6 metre high external wall of Category B at Table 3 of the Codes. Examples included areas of single storey houses and some areas of three storey houses and wall heights greater or lesser than the 6 metre standard.
Clause 4.3.4 of Sch 12 of LPS 4 sets a limit of two storeys for residential zoned land and the Tribunal has interpreted this as removing consideration of any discretion to allow three storeys. The Tribunal is of the view that the clause being silent on wall height does not mean that there is no external wall height standard for residential development in this sub-area. In this sub-area, the wall heights are not specifically set by cl 4.3.4 of Sch 12, but are set by cl 4.1 of Sch 12, which refers to the Codes. That is, a two storey development with a 6 metre external wall height would satisfy the acceptable development provisions for the height of a house. If the wall height is to be different from 6 metres, then it would be necessary to satisfy the performance criteria at cl 6.7.1 P1 of the Codes. At cl 4.2 of Sch 12 of LPS 4, there are also listed matters to be considered in applying both the general, that is, the height standards of the Codes, and specific height requirements, that is, a limit of two storeys, which is to be found at cl 4.3.4 of Sch 12.
The Tribunal has concluded that the height of the proposed development is to be assessed having regard to the standards to be found by reading cl 4.3.4 of Sch 12 of LPS 4 together with cl 4.1 of Sch 12 and having regard to the performance criteria at cl 4.2 of Sch 12, and cl 5.8.1 of LPS 4 and cl 6.7.1 P1 of the Codes.
The site is listed on the respondent's Municipal Heritage Inventory. Clause 7.2.2 of LPS 4 requires the preparation of a local planning policy for any heritage area. Carnac Street is not in a designated heritage area. Clause 7.5 of LPS 4 provides that site or development requirements might be varied to facilitate the conservation of a heritage place listed in the heritage list, but that is not an issue with this matter.
Clause 2 of LPS 4 contains provisions for the adoption of local planning policies. Clause 2.3 of LPS 4 sets out the relationship of local planning policies to LPS 4 as follows:
2.3.1If a provision of a local planning policy is inconsistent with the Scheme, the Scheme prevails.
2.3.2A Local Planning Policy is not part of the Scheme and does not bind the Council in respect of any application for planning approval but the Council is to have due regard to the provisions of the policy and the objectives which the policy is designed to achieve before making its determination.
Clause 2.6 of LPS 4 states that, where a local planning policy has been adopted under former City of Fremantle Town Planning Scheme No 3 (TPS 3), it shall continue to have effect as if it were a local planning policy under LPS 4.
The respondent has adopted Local Planning Policy 2.4 - Boundary Walls in Residential Development (Boundary Walls Policy) to replace the acceptable development provisions for boundary walls at cl 6.3.2(A2) of the Codes, as is provided for at cl 5.1 of the Codes. The respondent has also adopted Local Planning Policy DBH 1 Urban Design and Streetscape Guidelines (Policy DBH 1), which includes guidelines for rear additions to existing houses.

Proposed development

In February 2009, the applicant lodged a development application seeking retrospective planning approval for the following completed unauthorised works:
a)metal frame of partially constructed rear two storey addition to house;
b)northern boundary wall associated with the rear garage and alfresco eating area;
c)inclusion of a storeroom attached to the garage; and
d)reconfiguration of rear garden retaining walls, garden beds and associated fill and excavation.
The applicant also sought approval for the following new works:
a)the completion of a rear two storey addition to the existing dwelling;
b)upper floor balcony addition;
c)internal walls and room reconfiguration at the rear of the existing dwelling;
d)upper floor wall associated with an internal staircase;
e)enclosure of the existing southern elevation ground floor kitchen window; and
f)a front fence and brick and limestone side boundary fences.
The February 2009 application and the accompanying plans dated 18 June 2009 were refused by the respondent on 26 August 2009. The applicant then submitted revised plans to the respondent and it is the revised plans DWG A1 REV H and DWG A2 RDV H (Revision H plans) that are before the Tribunal. The applicant explained that two ways in which the Revision H plans differed from the June 2009 plans were that the upper level walk in robe was relocated from the southern side to above the ceiling of an existing room, increasing the southern side upper setback, and screening located on the southern side of the rear first floor deck and rear upper floor balcony was modified.
The 2004 approval had a rear external wall height of about 6.5 metres, and the parties agreed that the wall height of the two storey addition now proposed would be some 7 metres.

Refusal

The Council's decision issued on 26 August 2009 resolved:
1.That the application for planning approval be refused … as the proposed development is inconsistent with the 'Acceptable Development' provisions of the Residential Design Codes of Western Australia (2008) in terms of design element 6.7.1. The proposed development will have an adverse impact on the amenity of the southern adjoining property in terms of:
(a)restricted solar access; and
(b)increased building bulk and scale.
2.That the landowners be advised that the unauthorised development shall be removed within 60 days of the date of the refusal.

Issues

At the hearing, Mrs Butterworth said the completed garage and storeroom, swimming pool, walkway across the terrace and planter boxes were considered by the respondent to comply with the requirements of LPS 4 and the Codes. Mrs Butterworth also said the completed alfresco eating area on the roof of the garage substantially complied and could be allowed to remain providing it was suitably screened to meet the cone of vision requirements of the Codes in respect of No 35 Carnac Street to the south.
The parties remained in dispute as to whether the two storey addition to the rear of the house should be allowed. The issues listed below have been addressed in respect to the proposed two storey addition at the rear of the house and its associated balcony and deck.
In respect of matter DR 362 of 2009 - the refusal of the development application - the issues identified from the lists provided by the parties were as follows:
1)whether the development meets the objective and performance criteria relating to building height;
2)whether the development meets the objective and performance criteria of cl 6.3 of the Codes relating to building setback;
3)whether the development meets the objective and performance criteria of cl 6.8 of the Codes relating to visual privacy;
4)whether the development meets the objective of Council's Policy DBH 1 Urban Design and Streetscape Guidelines;
5)whether the development has the potential to adversely affect the amenity of the neighbours in the area;
6)whether the development meets the requirements of cl 10.2.1 of LPS 4 in regard to those matters listed that it is required to have regard to, including but not limited to sub-clause (s); and
7)whether approval of the development would be in accordance with orderly and proper planning.
The issues identified in respect of DR 365 of 2009 - that the unauthorised development be removed - are as follows:
1)whether the development, as constructed, complies with an existing planning approval;
2)whether portions of the development do not comply with an existing approval;
3)whether the development, the subject of the Notice, meets LPS 4 requirements and the requirements of the Codes; and
4)whether allowing unauthorised structures to remain would be in accordance with orderly and proper planning.
In the course of the hearing, the Tribunal viewed the site and the location on the site of the development the subject of the review. The site was viewed from the property immediately adjoining to the south, from the right of way at the rear, and from Carnac Street. The Tribunal was accompanied by the representatives of the two parties and the witnesses.

Discussion of the issues raised in respect of matter DR 362 of 2009

Issue 1: Whether the development meets the objective and performance criteria relating to building height

It was common ground that the proposed external wall height of the two storey extension would be approximately 7 metres. The wall would therefore exceed the 6 metre height requirement for external walls with pitched roof above at Table 3 of the Codes. It would also be 0.5 metres higher than the 6.5 metre wall height of the lapsed 2004 approval. The height at the top of the ridges of the addition would be about 8.6 metres and so would be less than the 9 metre maximum height of Table 3 of the Codes.
Mr Mal Buzza, a structural engineer who was called by the applicant, said a structurally sound and economical solution was one where the beams, which supported the floor of the upper level, rested on top of the walls of the ground floor rooms of the existing house rather than being attached to the side of them. This was the reason why the wall height was increased to 7 metres when the upper level framing was erected. A lower upper floor level would require an alternative solution which would require additional columns for the same span. This would be, in his opinion, a less economical use of the space and a poorer design solution. Space above the existing rooms would only then be available for use if the ceiling of the existing room was lowered. Mr Lohman said that, if the upper floor beams were to rest on top of the existing walls of the original house, it would not be possible to have a second floor within an overall wall height restricted to 6 metres.
The proposed addition at the rear of the house does not exceed the two storey maximum limit of cl 4.3.4 of Sch 12 of LPS 4. Under cl 4.1 of Sch 12 of LPS 4, the development must be assessed against the height requirements at cl 6.7.1 of the Codes. The proposed wall height, being greater than 6 metres, does not satisfy the acceptable development standards for external wall height at cl 6.7.1 A1 of the Codes and must therefore satisfy the performance criteria at cl 6.7.1 P1 of the Codes. To be allowed, the two storey development must also satisfy the performance criteria at cl 4.2 of Sch 12. In addition, the performance criteria for variation of height at cl 5.8.1 of LPS 4 are also relevant.
The Codes, at cl 6.7.1 P1, set out the following performance criteria in respect of building height:
Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
•adequate direct sun to buildings and appurtenant open spaces;
•adequate daylight to major openings to habitable rooms; and
•access to views of significance.
Clause 4.2. of Sch 12 of LPS 4 provides that, in granting consent to the maximum height, in this matter two storeys, the following 'shall' be satisfied:
•that the proposal is consistent with predominant height patterns of adjoining properties and the locality generally,
•the proposal would not be detrimental to the amenity of the area,
•the proposal would be consistent, if applicable, with conservation objectives for the site and locality generally, and
•any other relevant matter outlined in Council's local planning policies.
Clause 5.8.1 of LPS 4 refers to variation to building height, as follows:
Where sites contain or are adjacent to buildings that depict a height greater than that specified in the general or specific requirements in schedule 12, Council may vary the maximum height requirements subject to being satisfied in relation to all of the following:
(a)the variation would not be detrimental to the amenity of adjoining properties or the locality generally,
(b)degree to which the proposed height of external walls effectively graduates the scale between buildings of varying heights within the locality,
(c)conservation of the cultural heritage values of the building on-site and adjoining, and
(d)any other relevant matter outlined in Council's local planning policies.
The Tribunal notes that there is some overlapping of the performance criteria of the respective clauses. Also noted is that some of the criteria overlap with considerations under the other issues addressed below. The height criteria in dispute are essentially concerned with access to sunlight and daylight, impact on amenity of the locality and neighbours and building height patterns.
Ms Kate Chambers, the owner of No 35 Carnac Street, appeared as a witness for the respondent. Ms Chambers said that she had not objected to the 2004 development, but made the comment that she did not fully understand the concept of the development at the time. She could now see the frame of the upper level of the two storey extension and could envisage the impact a development of that height in that location would have on her rear patio and rear living room. She considered her amenity would be adversely affected by the bulk of the building and by her access to light being reduced.
In respect to adequate direct sun to buildings and open spaces, Mrs Butterworth and Ms Claire Richards, a town planner called by the applicant, agreed that, in relation to overshadowing, the development complied with the acceptable development standard at cl 6.9.1 A1 of the Codes. This was because the proposed development would not overshadow more than 35% of the area of the neighbouring lot if consideration is given to the parent lot for the two strata lots of No 35 and No 37 Carnac Street.
Mrs Butterworth said the development, however, would overshadow to an unacceptable degree the outdoor living area and rear patio of the strata lot, which was No 35 Carnac Street. The reduction in access to sun would reduce the access to light on the patio and, through the translucent sheet on the patio roof, to the room opening off it. Ms Richards considered any overshadowing to be minor and would not result any overshadowing of habitable rooms or outdoor living areas additional to that which results in the existing and previously approved development.
In respect to building heights, the expert witnesses referred to other examples of two storey development in the locality. Mrs Butterworth said the spacing of these meant that no graduation of scale between buildings could be achieved by the proposed development and there were not enough two storey buildings in the locality for the development to be consistent with the predominant height pattern. Mrs Butterworth said the relevant performance criteria were not satisfied, and both cl 5.8.1 and cl 4.2 of Sch 12 of LPS 4 required that all criteria must be satisfied.
Ms Richards said the other two storey developments in the locality were sufficiently close for the proposed development to be consistent with the height pattern in the locality. It was of concern to her that if development could only be consistent with the predominant height, which was single storey, then two storeys could never be allowed and the provisions to consider two storeys for the sub-area referred to at cl 4.3.4 of Sch 12 of LPS 4 were of no effect. It was her opinion that regard should be had to likely future development in the locality, which would be predominantly two storey, and LPS 4 allowed such development. She noted the topography of the site, which falls some 2.5 metres from Carnac Street to the rear of the lot, and said that the height of the wall of the addition and of neighbouring additions would be a function of this topography. Ms Richards considered all the relevant performance criteria were satisfied to support the height of the proposed two storey development.
The Tribunal considers that there would be a height where the development would have such an impact on the neighbouring site and the locality that refusal would be warranted. Assessment using the relevant performance criteria would establish whether that height had been reached. The Tribunal does not accept that the applicant's preference for the most economical design solution for the development should dictate whether a height variation is allowed. If performance criteria were not satisfied, then an alternative design would have to be used.
The Tribunal has formed the view that the proposed development satisfies the performance criteria related to height. The Tribunal notes that access to direct sun at No 35 Carnac Street would be affected by a single storey development and a 6 metre high development, both of which would satisfy the acceptable development standards of the Codes. Such a development would, of course, also have to satisfy the matters to be considered under cl 10.2.1 of LPS 4, which are addressed at issue 6 below.
A development 6.5 metres high was approved in 2004, but that approval has lapsed. As part of that approval, however, there was built the current ground floor level of the rear addition. The two planning experts agreed in their joint statement that the height of the development from finished ground floor level to the top of the external wall of the upper storey ceiling would measure 5.958 metres. In other circumstances, two storeys of this height might not be controversial. In this matter, it is the build up related to the topography under the approved floor that gives rise to the building height in dispute.
In considering height patterns, evidence shows that the locality is predominantly single storey, but there is a clearly identifiable significant minority of two storey developments randomly placed nearby. The bundle of documents includes the minutes of the respondent's Planning Services Committee for 15 July 2009. At 77 of the minutes, the planning officer's report states that the house at No 29 Carnac Street has a western wall with a height of approximately 7.4 metres. There was no evidence on the height of other two storey buildings, but the visit to the locality revealed others appeared similar in height to No 29 Carnac Street, although not as prominent from some viewpoints because of the topography. The Tribunal has formed the view that the proposed development would be generally consistent in height with the other two storey developments in the locality.
The degree to which the proposed height graduates the scale between buildings of varying heights is a concept difficult to envisage. It would appear that no two buildings could be of the same height. The proposed development would be a step up from the two storey addition at No 31 Carnac Street, which, in turn, is a step down from the two storey building at No 29 Carnac Street. The concept of graduated heights is difficult in a locality of randomly mixed one and two storey buildings and sloping topography. The proposed height appears to fit into the local graduation of heights to a degree sufficient to satisfy cl 5.8.1(b) of LPS 4.
Impact on the amenity of neighbours and locality is issue 5 below and is also part of the discussion of the other issues. From those discussions, it has been concluded by the Tribunal that the impact on the amenity of the neighbours does not warrant refusal of the proposal.
The Tribunal has formed the view that, in respect of height, the proposed development satisfies the performance criteria found at cl 6.7.1 P1 of the Codes and in LPS 4 at cl 4.2 of Sch 12 and cl 5.8.1.

Issue 2: Whether the development meets the objective and performance criteria of cl 6.3 of the Codes relating to building set back

The existing wall on the northern boundary and proposed additional northern boundary wall abut a wall of similar dimensions. The experts agree that these walls satisfied the acceptable development standards of the Boundary Walls Policy and therefore satisfied the performance criteria for a building on a boundary at cl 6.3.2 of the Codes.
The southern walls of the two storey addition are not on the boundary and are subject to the Codes. The upper level wall of the addition is set back 2.4 metres from the boundary and satisfies the acceptable development requirements of cl 6.3.1 A1 for a wall 7 metres high and 11.3 metres long with no openings to a habitable room.
The parties agreed that the proposed new ground level wall would not satisfy the acceptable development provisions of cl 6.3.1 A1 of the Codes, because the setback from the southern boundary would be 1.1 metres in lieu of 1.7 metres required at Table 2a of the Codes for the length of wall. The ground floor southern wall of the addition would therefore need to satisfy the performance criteria at cl 6.3.1 P1 of the Codes, which require setback so as to:
•Provide adequate direct sun and ventilation to the building;
•Ensure adequate direct sun and ventilation being available to adjoining properties;
•Provide adequate direct sun to the building and appurtenant open spaces;
•Assist with protection of access to direct sun for adjoining properties;
•Assist in ameliorating the impacts of building bulk on adjoining properties; and
•Assist in protecting privacy between adjoining properties.
Ms Chambers of No 35 Carnac Street expressed a concern that her access to direct sun, and especially daylight for her rear patio and the room opening onto it, would be reduced. Ms Chambers also expressed concern about the impact on her patio and room from the bulk of the proposed development at the reduced setback. She did acknowledge that the 2004 development would have had a similar impact, and a single storey addition would have the same impact on direct sunlight.
Mrs Butterworth acknowledged that the respondent had approved virtually the same length of ground floor wall at this setback in 2004, and consistency in decision-making might warrant approval at the setback proposed. She did say, however, that the development did not satisfy the performance criteria at cl 6.3.1 P1 of the Codes. The second dot point and the fourth dot point of the performance criteria would not be satisfied because the extension would not ensure or assist in protecting direct sun to No 35 Carnac Street adjoining to the south, especially its rear patio. The extension would also be in conflict with the fifth dot point of cl 6.3.1 P1 of the Codes because the reduced setback would not assist in ameliorating the impact on adjoining properties of building bulk of the now higher proposal.
Ms Richards referred to the east-west orientation and the narrow widths of the lots in Carnac Street. She said the existing windows in the northern wall of No 35 Carnac Street already had a view of and were in the shadow of the existing house on the site, and the extension would not alter this. The additional shadow of the extension would be on the roof, and increasing setback would not alter this.
In respect of the rear patio of No 35 Carnac Street, Ms Richards said a development of a single storey or a 6 metre high complying development would prevent access to direct sunlight. She pointed out that the western end of the addition at the rear of the house on the site was virtually in line with the western end of the patio roof on No 35, and so the patio would get some afternoon sun above the fence.
Ms Richards also pointed out that the wall with the reduced setback finished about 2 metres short of the western end of the patio, and for the last 2 metres, the screen wall of the southern side of the deck and the balcony would be set back about 2.4 metres from the boundary. The view of the proposed development was through the gap between the top of the fence and the eave of the patio roof, with no view of the top of the wall.
The Tribunal's visit to the site and No 35 Carnac Street confirmed the analysis and submission of Ms Richards. The impact of the bulk of the proposed addition is considered not to be a result of the reduced setback, but of the height, and this has been addressed under issue 1 above. The Tribunal has formed the view that the setback of the proposed addition generally satisfies the performance criteria of cl 6.3.1 P1 of the Codes.

Issue 3: Whether the development meets the objective and performance criteria of cl 6.8 of the Codes relating to visual privacy

The experts agreed that the proposed upper floor balcony, the deck below the balcony and the rear alfresco eating area above the garage do not comply with the acceptable development criteria of cl 6.8.1 A1 of the Codes relating to visual privacy. This was because the cone of vision from each location would extend marginally into the rear yard of No 35 Carnac Street. The experts agreed that the cone of vision intrusion would be into the canopy of an existing tree.
Ms Richards was of the view that the performance criteria of cl 6.8.1 P1 of the Codes was satisfied, because the view was to the tree canopy and, from the two storey addition, beyond to the rear of the yard of No 35 Carnac Street.
Mrs Butterworth said the performance criteria of cl 6.8.1 P1 of the Codes were not satisfied. The neighbour's tree might have to be removed or die and should not be a consideration. In addition, the area of No 35 Carnac Street was small and the view was to the limited available rear yard area.

The Tribunal considers that the existence of the tree on the neighbour's land should not be the factor determining whether visual privacy objectives are met. The Tribunal is satisfied, however, that, for this development, the visual privacy objectives of the Codes could be the subject of conditions of any approval.

Issue 4: whether the proposed development meets the objective of Council's Policy DBH 1 Urban Design and Streetscape Guidelines

The objective of Policy DBH 1 is:
… to conserve and enhance areas of architectural or historic character whilst encouraging harmonious development with the existing authentic character and appearance of the traditional residential areas of Fremantle.
Policy DBH 1 at cl 6(a) states:
Any additions and extensions should be designed in such a way as to retain and enhance the character and integrity of the existing house and to minimise any impact of new additions on the streetscape and neighbourhood properties.
The experts agreed that there were one and two storey dwellings in the immediate locality and, particularly on the western side of Carnac Street, examples of dwellings which were single storey at the front and two storey at the rear.
Mrs Butterworth said the development, however, did not meet the objectives of Policy DBH 1 because of the height of the proposed two storey rear addition. Mrs Butterworth said the addition would be visible from the street, and if this over-height development was allowed, this would establish a standard others would choose to follow and this would have an adverse impact on the streetscape and neighbourhood properties. She was of the view that the external wall heights of other two storey developments in the near locality were predominantly less than that proposed for the site.
Ms Richards said the proposed development complied with the objectives of Policy DBH 1. She questioned the relevance of existing single storey height patterns in determining the suitability of building height on the site and was of the view that equal consideration should be given to potential future height patterns. Ms Richards noted that, in this regard, the provisions of LPS 4 and Policy DBH 1 permitted two storey developments in this locality.
The Tribunal formed the opinion after visiting the site and Carnac Street that views of the proposed rear two storey addition from the street would be minimal and only apparent from certain locations. The addition would obviously be behind the heritage house on the site and would not detract from the contribution the house made to the streetscape. While anticipating possible future development in the street was not considered useful, the Tribunal formed the opinion that the two storey development at the height proposed would have a minimal impact on the streetscape of Carnac Street.
The viewing of this locality from the right of way revealed that at the rear of houses are garages, extensions and outbuildings of a wide mix of materials, standards of workmanship, age and design. From the right of way, the proposed extension would not be an intrusion into a harmonious residential character. The conclusion reached by the Tribunal is that the impact of the proposed two storey addition on the streetscape and neighbouring properties is likely to be minimal and consistent with the objectives of Policy DBH 1.

Issue 5: Whether the development has potential to adversely affect the amenity of the neighbours and the area

It was common ground that there would be some impact on the amenity of neighbours. Ms Chambers, of No 35 Carnac Street adjoining to the south, voiced her concerns about the impact she considered there would be on her access to direct sunlight and light, and from the bulk of the development. Ms Chambers also expressed concern that the previously approved fence adjacent to her patio was not built before the 2004 approval expired and she was left looking at an old and damaged picket fence.
Mrs Butterworth maintained her position that allowing a building with an external wall height of approximately 7 metres had the potential to result in other similar applications nearby and that dwellings of this height would erode the character of the area over time. In respect of neighbours, Mrs Butterworth was of the opinion that the proposed development would have an adverse impact on the amenity of No 35 Carnac Street and the opinions of Ms Chambers should be given weight in this regard. The impact on No 35 Carnac Street arose because of the height and bulk of the two storey addition and the effect of restricted access to direct sun and light and of overlooking of the patio and yard.
The Tribunal considers that there must be reasonable expectations that there would be development of some form on the site in the location of the previously approved two storey addition, if only to finish off the approved and constructed floor and deck.
As discussed in the issues above, the Tribunal has formed the view that the two storey addition as proposed would have a similar impact on access to light and sunlight at No 35 Carnac Street as would a lesser form of development. The Tribunal appreciates that no development would be the preference of the neighbour, other than screening of the deck and building the fence. However, in assessing the impact of the proposed development, as discussed under the issues above, the Tribunal has formed the opinion that the development would not have sufficient impact to warrant refusal.
In respect of the impact on the amenity of the wider neighbourhood, the Tribunal found above that the view of the rear of the houses in this locality is of a wide range of building styles, materials and standards. As with other development, the proposed addition would be prominent because of the topography as well as the height. The addition would not be consistent in height with the majority of single storey houses, but it would be similar to other two storey additions.
The Tribunal has formed the view that the change the proposed development will bring to the local amenity is not so marked as to be a reason for refusal.

Issue 6: Whether the development meets the requirements of cl 10.2.1 of LPS 4 in regard to those matters listed, including but not limited to subclause (s)

Compliance with provisions of the Codes does not mean that it is no longer necessary to satisfy the relevant development provisions of LPS 4. Clause 10.2.1 of LPS 4 lists matters to be considered when assessing a development, and this includes, relevantly:
…
(o)the preservation of the amenity of the locality.
…
(q)… setbacks, height …
…
(s)the way in which the buildings relate to the street and adjoining lots, including their effects on … the traditional streetscape, and on the privacy, daylight and sunlight available to private open space and buildings,
…
(w)the relationship of the proposal to development on adjoining land or on land in the locality including[,] but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal.
Item (o) from the list has been discussed under issue 5 above. Item (q) from the list – setbacks – were discussed above, but it was the respondent's position that, because of the impact from the proposed height of the addition, setbacks might be increased, even where the Codes are satisfied.
In respect to impact on streetscape of item (s) from the list, this was addressed at issue 4 above and the Tribunal concluded that, because the addition would be behind the restored original house, the impact would be acceptable. Privacy is a concern, but the Tribunal considers that addressing any concerns by conditions would be appropriate in a locality where lots are narrow and sloping. Many forms of otherwise reasonable development would be difficult to achieve in this locality if privacy concerns were not dealt with in this way.
The respondent maintained that, although overshadowing requirements under cl 6.9 of the Codes were satisfied, for the strata lot on which No 35 Carnac Street is situated, the height of the proposed addition and its proximity to the boundary would result in unreasonable restrictions of daylight and sunlight available to private open space and buildings. As discussed above, the proposed development will have an impact on access to direct sunlight and light at the rear patio of No 35 Carnac Street and there will also be an impact on sunlight to the backyard. The Tribunal has noted that this will not be for all of the day and, significantly, it is considered that lesser forms of development sited where the addition is proposed would have a similar impact because of the eastwest orientation and narrow width of the lots. It is considered reasonable that development be allowed at the rear of the existing house, and the Tribunal has concluded that the impact on access to light and, to a lesser extent, direct sun, is not reduced to a level where development should be refused.
The matters listed in item (w) of cl 10.2.1 of LPS 4 height and bulk have been addressed in the discussion under issue 1 and issue 2 above. Appearance was the subject of issue 4. The Tribunal has reached the same conclusions in respect of these elements under cl 10.2.1 of LPS 4.

Issue 7: Whether approval of the development would be in accordance with orderly and proper planning

The Tribunal has formed the view that the development would be consistent with orderly and proper planning because, when considered in the light of the conclusions reached in respect of the issues listed above, the relevant performance criteria of the Codes, the provisions of LPS 4 and Policy DBH 1 are satisfied.

Conclusion – DR 362 of 2009

The Tribunal is concerned that there be consistency in decision-making if a development proposal has not changed and the planning controls have not materially changed. In this matter, a development approval issued in 2004 resulted in certain development being completed, most notably the finished floor level of the ground floor and the deck at the rear of the house on the site and the setback from the southern boundary. The Tribunal would be reluctant to set aside the approvals of these elements in any fresh development proposal based around the earlier but now lapsed approval.
The 2004 approval lapsed after three years and subsequent development has been unlawful. Since that time, TPS 3 has been replaced by LPS 4, which includes Sch 12 and cl 5.8.1, which are relevant to this matter. The Residential Design Codes of Western Australia (2002) have been replaced with the current Codes, although there is no material difference in the provisions applicable to the development.
The development now proposed has many similar features to that approved in 2004. A significant difference, however, is that the external height of the western wall of the addition has been increased from 6.5 metres to 7 metres. Height, in turn, has a bearing on such matters as overshadowing, access to direct sun and light, bulk, privacy and impact on amenity. The assessment of the proposed development has therefore involved consideration of the proposed development in light of the planning controls now in place, and the issues identified reflect this.
Issue 1 was whether the development meets the objective and performance criteria relating to building height. The Tribunal concluded that, in respect of the height now proposed, the development satisfies the performance criteria to be found at cl 6.7.1 P1 of the Codes and cl 5.8.1 and cl 4.2 of Sch 12 of LPS 4.
Issue 2 was whether the development meets the objective and performance criteria of cl 6.3 of the Codes relating to building setback. As stated above, the ground floor setback to the addition was established by completion of part of the work approved in 2004. The upper level setback is consistent with the acceptable development standards at Table 3 of the Codes. The Tribunal concluded that any approval of the additional development could be at the setbacks proposed.
Issue 3 was whether the development meets the objective and performance criteria of cl 6.8 of the Codes relating to visual privacy. The Tribunal concluded that, for development on a lot as narrow and sloping as the site, it was reasonable that any privacy concerns be addressed, where required, by conditions of approval.
Issue 4 was whether the development meets the objective of Council's Policy DBH 1 Urban Design and Streetscape Guidelines. The Tribunal found that the addition at the rear of the house did not intrude into the streetscape or adversely affect the contribution the heritage house on the site made to that streetscape.
The Tribunal also concluded that, when viewed from the rear right of way, the additions would be prominent in the locality. It was noted, however, the area along the right of way was marked by a wide range of buildings of different uses, materials, styles, ages, and standards of workmanship. It was concluded that the proposed development would not compromise any authentic residential character or appearance. The proposed addition would not, therefore, be in conflict with Policy DBH 1.
Issue 5 was whether the development has the potential to adversely affect the amenity of the neighbours in the area. From the findings made on each of the issues, the Tribunal concluded that the impact on the amenity of the neighbour to the south and the locality generally would be at an acceptable level.
Issue 6 was whether the development meets the requirements of cl 10.2.1 of LPS 4 in regard to those matters listed that it is required to have regard to, including, but not limited to, subclause (s). Compliance with provisions of the Codes or assessment under the terms of a policy does not mean that it is no longer necessary to satisfy the relevant development provisions of LPS 4. Clause 10.2.1 of LPS 4 lists matters to be considered when assessing development. As set out above, under this issue, the Tribunal, where required, weighed the proposal according to the items listed. The Tribunal came to the same conclusions as reached when assessing the development under the Codes and the policies. That is, that the impact of the height, bulk and setback of the proposed addition to the house on the amenity of the neighbour and the locality, on the streetscape and on the neighbour's access to direct sun and light were at an acceptable level.
Issue 7 was whether approval of the development would be in accordance with orderly and proper planning. The Tribunal has found that the development would be consistent with orderly and proper planning because, when considered in the light of the conclusions reached in respect of the issues listed above, the relevant performance criteria of the Codes, the provisions of LPS 4 and Policy DBH 1 are satisfied.
Having regard to the conclusion reached in respect to the issues raised in this matter, the Tribunal has concluded that the application for review can be allowed and the proposed addition to the rear of the existing house granted conditional approval. The respondent had submitted that the application for the garage and storeroom, the alfresco eating area and the upper terracing and planters could be allowed as consistent with the intent of LPS 4 and the Codes, subject to a condition to address the overlooking of No 35 Carnac Street.

Discussion of the issues raised in respect of matter DR 365 of 2009

Matter DR 365 of 2009 is the review of the Council's decision that all unauthorised development be removed within 60 days. The parties identified three issues to be addressed which were set out above.
In its review of the refusal of the planning application under DR 362 of 2009, the Tribunal has concluded that the proposed development can be granted conditional planning approval. The consequence of this is that previously unauthorised development now has approval. The Tribunal has decided to allow the application for review of the Council's decision that unauthorised development be removed and the notice is set aside. Examination of the issues raised in respect of this matter is not, therefore, required.

Orders

In the matter of DR 362 of 2009:

1.The application for review is allowed.
2.The Council's decision 1 issued 26 August 2009 is deleted and replaced with the following:
Planning approval is granted for development at [No] 33 Carnac Street, Fremantle shown on plans identified as DWG No A1 REV H and DWG No A2 REV H, subject to the following conditions:
(i)The eastern elevation of the rear alfresco eating area above the garage shall be suitably screened with permanent fixed screening in order to comply with the acceptable development standard of a 7.5 metre cone of vision set back to the boundary to the satisfaction of the Chief Executive Officer, City of Fremantle.
(ii)The southern and western elevations of the deck area and balcony at the rear of the house shall be suitably screened with permanent fixed screening in order to comply with the acceptable development standards of a 7.5 metre cone of vision set back to the boundary to the satisfaction of the Chief Executive Officer, City of Fremantle.
(iii)The external height of the western wall of the two storey addition at the rear of the house is not to exceed 7 metres.
(iv)All stormwater is to be disposed of on site.
(v)The timber dividing fence between No 33 and No 35 Carnac Street shall be replaced at the applicant's expense and a 1.8 metre high fence of brick piers with limestone panelling, as shown on the applicant's plan, shall be constructed from the rear of the lot to a point equivalent to the front elevation of the residence, to the satisfaction of the Chief Executive Officer, City of Fremantle.

In the matter of DR 365 of 2009:

1.The application for review is allowed.
2.Council's decision 2 issued 26 August 2009 is deleted.

I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER