WILLIAMS and CITY OF SUBIACO
[2016] WASAT 21
•8 MARCH 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WILLIAMS and CITY OF SUBIACO [2016] WASAT 21
MEMBER: MS D QUINLAN (MEMBER)
HEARD: 9 FEBRUARY 2016
DELIVERED : 8 MARCH 2016
FILE NO/S: DR 171 of 2015
BETWEEN: SUE WILLIAMS
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development application - Ancillary dwelling above garage at rear of site - Context of built form in the locality - Variation to wall height - Whether proposal would compromise amenity of surrounding properties
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 37, cl 39(3), cl 41(2), cl 42, Sch 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)(c)(i)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67, Sch 2
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 Residential Design Codes, cl 5.1.2, cl 5.5, cl 5.5.1, cl 5.5.1 C1, cl 5.5.1 C1(i), cl 5.5.1 P1, cl 7.1, cl 7.3, cl 7.3.1, Pt 5
Result:
The application for review is allowed.
Development approval granted, subject to conditions.
Summary of Tribunal's decision:
The applicant sought approval to demolish the existing garage to the rear and construct in its place a two storey building comprising a garage on the ground floor and an ancillary dwelling on the second storey consisting of a bedroom with ensuite as well as a living space combined with a kitchenette. The subject site (comprising 334m² in size) has an existing dwelling comprising a single storey timber and iron house fronting onto Park Street, Subiaco with a garage at the rear with vehicular access gained from the ROW. The City of Subiaco submitted that the proposal did not satisfy Design Element 5.5.1 P1 (Ancillary dwelling) of the State Planning Policy 3.1 Residential Design Codes as the additional dwelling would compromise the amenity of surrounding properties. The Tribunal considered the following matters when determining whether the proposal would compromise the amenity of surrounding properties: (1) whether to permit a variation of wall height from 3.6 metres to 5.8 metres under cl 42(1) of City of Subiaco's Town Planning Scheme No 4; and (2) the context of built form in the locality.
The Tribunal was satisfied that there was no undue adverse impact on adjoining residential lots or general amenity of the locality if the wall height was varied upwards to 5.8 metres. The Tribunal accepted that the streetscape of Park Street is characterised by predominantly single storey frontages and a number of those are original iron roofed timber cottages such as the subject site. However, the Tribunal did not accept the opinion of the respondent's planner that there are a limited number of two storey developments in the locality. When you move toward the rear of Park Street and into the ROW the built form in the locality is more varied and does include second storeys and increases in bulk and scale. The Tribunal did not accept that the bulk and scale of the proposal was significant in the context of the locality. Although both parties referred the Tribunal to the respondent's Triangle Precinct Policy, the Tribunal was of the view that this policy did not apply to ancillary dwellings which are assessed under cl 5.5.1 of the State Planning Policy 3.1 Residential Design Codes.
Category: B
Representation:
Counsel:
Applicant: Mr Castleton (Acting as agent)
Respondent: Mr J Algeri (Acting as agent)
Solicitors:
Applicant: TDG Town Planning and Urban Design (Town Planning Consultants)
Respondent: Altus Planning & Appeals
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 23 February 2015, Ms Susan Williams (applicant) made an application to the City of Subiaco (respondent or City) for a development approval relating to the rear of No 22 (Lot 20) Park Street, Subiaco (subject site). The approval sought was to demolish the existing garage to the rear of the subject site and construct in its place a two storey building comprising a garage on the ground floor and an ancillary dwelling on the first floor.
The planning officer's report to the respondent's Development Services Committee recommended approval. On 12 May 2015, the Development Services Committee refused the application on the basis that:
The proposal does not satisfy Design Element 5.5.1 P1 (Ancillary Accommodation [sic]) of the Residential Design Codes as the additional dwelling will compromise the amenity of surrounding properties through overlooking, insufficient onsite parking, site area and open space.
The applicant sought a review in the Tribunal under s 252(1)(c)(i) of the Planning and Development Act 2005 (WA) (PD Act).
On 31 July 2015, the applicant provided revised plans to the respondent. On 22 September 2015, pursuant to an invitation by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the City reconsidered its decision. The planning officer recommended approval. The City resolved to refuse the revised proposal for the following reason:
The proposal does not satisfy Design Element 5.5.1 P1 (Ancillary Accommodation [sic]) of the Residential Design Codes as the additional dwelling will compromise the amenity of surrounding properties by not meeting the minimum site area requirement of 450m² and is considered overdevelopment for a small lot in a Residential R20 area.
On 9 November 2015, the applicant provided further revised plans to the respondent which removed the proposed laundry facilities from the ensuite, provided additional louvres for privacy screening to the external staircase leading to the first floor and clearly demonstrated that two vehicles could be parked on the subject site (revised proposal).
On 1 December 2015, pursuant to a further invitation by the Tribunal under s 31 of the SAT Act, the City reconsidered its decision. The planning officer recommended approval of the revised proposal. The City resolved to refuse the revised proposal for the following reasons:
1.The proposal does not satisfy Design Element 5.5.1 P1 (Ancillary Accommodation [sic]) of the Residential Design Codes as the additional dwelling will compromise the amenity of surrounding properties by not meeting the minimum site area requirement of 450m² and is considered overdevelopment for a small lot in a Residential R20 area; and
2.The development would not be consistent with clauses 42(1) and 42A of Town Planning Scheme No. 4 as the proposed wall height of the development would have an undue adverse impact on the amenity of adjoining residential land.
The respondent agrees that cl 42A of the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme) is not relevant to this review. The respondent further quite properly concedes, contrary to the reason expressed by the City for refusing the proposal on 22 September and 1 December 2015, that there is no minimum site area requirement of 450m² for an ancillary dwelling when applying the design principle in clause 5.5.1 of State Planning Policy 3.1 Residential Design Codes (R Codes).
Subject site and locality
The following facts regarding the subject site and locality can be ascertained from the evidence:
(a)The subject site is located at No 22 (Lot 20) Park Street, Subiaco.
(b)The subject site comprises a total site area of 334m² and is located within the street block bound by Barker Road to the north, Coghlan Road to the east, Park Street to the south and Bedford Avenue to the west.
(c)The street block is intersected by a right of way (ROW) with a width that varies between 2 and 3 metres, which is narrow but not unusual in an older suburb.
(d)The subject site has an existing dwelling comprising a modest single storey timber and iron house consisting of two bedrooms and two bathrooms.
(e )The subject site fronts onto Park Street with a garage at the rear with vehicular access gained from the ROW.
(f)The subject site has a courtyard outdoor living space between the existing dwelling and the garage located in the middle third of the lot.
(g)The subject site contains a substantial jacaranda tree on the north‑east corner in front of the existing garage which is a prominent visual feature in the ROW and is intended to be retained as part of the proposal.
(h)The subject site adjoins No 18 Park Street to the west (No 20 Park Street does not exist). No 18 Park Street is a contemporary dwelling with a single storey frontage to Park Street with a substantial two storey component located in the middle third of the lot.
(i)No 18 Park Street adjoins No 16 Park Street and is a contemporary two storey dwelling in the style of art deco with the two storeys commencing at the streetscape and continuing beyond the middle third into part of the rear third of the lot.
(j)Both Nos 16 and 18 Park Street have their outdoor living spaces on the eastern side of their lots, furthest away from the subject site and proposed ancillary dwelling.
(k)Immediately to the west of the subject site is No 26 Park Street (No 24 Park Street also does not exist) which is a bungalow single storey property with a grassed backyard, shed and paved parking partly in the middle and rear third of the lot.
(l)The streetscape of Park Street is characterised by single storey frontages with a number of those being original iron roofed timber cottages, such as the subject site, all of which provide a relatively historic intact streetscape.
(m)Coghlan Road to the east contains a substantial apartment building of multiple storeys which is visible from the ROW at the rear of the subject site.
The parties do not agree as to how to characterise the built form in the locality. The Tribunal will make findings as to the context of the built form in the locality later in these reasons.
Proposal
At the commencement of the hearing held on 9 February 2016, the Tribunal determined as a preliminary issue that the hearing would proceed on the basis that the application was for an ancillary dwelling and that the applicant would not be allowed to alter the characterisation of the proposed development to be either in the first instance, a two storey single house addition or, in the alternative, an ancillary dwelling.
The proposal (as revised in the plans date stamped 9 November 2015) seeks approval on the subject site to demolish the existing garage to the rear and construct in its place a two storey building, comprising a garage on the ground floor and an ancillary dwelling on the second storey, consisting of a bedroom with ensuite as well as a living space combined with a kitchenette. The size of the ancillary dwelling approximates 50m².
Planning framework
The subject site is zoned Urban in the Metropolitan Region Scheme and Residential with a density coding of R20 under TPS 4. 'Ancillary Accommodation' is a 'P' (permitted) use in the Residential R15 and R20 zone providing the use is consistent with the requirements of the Scheme, the relevant planning policies and the R Codes.
Schedule 1: Definitions of TPS 4 provides that 'Ancillary Accommodation' has the same meaning given to it in the R Codes. It was agreed 'Ancillary Accommodation' was the same as the contemporary term 'Ancillary dwelling' The R Codes define ancillary dwelling as a '[s]elf‑contained dwelling on the same lot as a single house which may be attached to, integrated with, or detached from the single house'.
Both TPS 4 and the Deemed Provisions in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions) define 'amenity' as 'means all those factors which combine to form the character of an area and include the present and likely future amenity'.
Clause 39(3) of TPS 4 provides that, unless otherwise provided for in TPS 4, the development of land for residential purposes is to conform to the R Codes.
The aims and objectives of TPS 4 in the Residential zone are found in cl 41(2) as follows:
(a)the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community;
(b)the protection of residential areas from any interaction between different intensities of uses or incompatible uses which could be objectionable or detrimental to the amenity of any neighbourhood;
(c)the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
(d)the protection of the privacy of indoor and outdoor living spaces of dwellings;
(e)the encouragement of new concepts of residential design, including the development of new types of residential accommodation and comprehensive development projects;
(f)to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock[;]
(g)to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping; AMD2 GG 22/10/04; AMD 8 GG 9/1/09[;]
(h)to assist in the rejuvenation of degraded streetscapes; AMD 8 GG 9/1/09[;]
(i)to promote and encourage design that incorporates sustainability principles, including but not limited to solar passive design, energy efficiency, reduction in greenhouse gas emissions, water conservation, waste management and recycling;
(j)to promote and encourage design that incorporates crime prevention through environmental design principles including but not limited to, appropriate fencing, appropriate landscaping, casual surveillance of public open spaces and adequate pedestrian movement sightlines. AMD 8 GG 9/1/09[.]
Clause 42(1) of TPS 4 varies the R Codes in relation to building height in R15 and R20 density areas as follows:
(a)Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
An ancillary dwelling is one of three types of 'Special purpose dwellings' as defined in the R Codes. Clause 5.5 of the R Codes provides the objectives of special purpose dwellings as follows:
(a)To ensure residential development is provided to accommodate people with or without special needs.
(b)To provide ancillary accommodation which is independent or semiindependent to residents of the single house.
(c)To ensure that dwellings for the aged and people with special needs can be provided within residential areas.
(d)To provide opportunities for affordable housing.
As the proposal did not meet the minimum lot size of 450m² as specified in the deemedtocomply provision of clause 5.5.1 C1(i), the design principle in clause 5.5.1 P1 of the R Codes applies in assessing the proposal as follows:
Ancillary dwelling for people who live either independently or semi‑dependently to the residents of the single house, sharing some site facilities and services and without compromising the amenity of surrounding properties.
Clause 7.1 of the R Codes states that a decision maker shall not amend or modify the R Codes to provide for greater or lesser requirements unless it relates to matters expressly permitted under the R Codes. Subject to clause 7.3, a local planning policy is required to be consistent with the R Codes and may provide local objectives in so far as it guides the decision maker to determine proposals.
Clause 7.3.1 of the R Codes provides opportunities for local governments to amend or replace certain deemedtocomply provisions in Part 5 of the R Codes providing they are consistent with the design principles. Whilst this proposal is not being assessed under the deemedtocomply provisions of clause 5.5.1, it is noted that the R Codes do not provide any opportunity to a local government to amend or replace the deemedtocomply clause 5.5.1 C1 for ancillary dwellings.
Clause 67 of the Deemed Provisions provides that, in considering an application, the local government (and the Tribunal standing in the shoes of local government) is to have due regard to a number of listed matters to the extent that those matters are considered relevant by the local government. Whilst the matters listed in cl 27(4) of TPS 4 are consistent with the Deemed Provisions, the Tribunal notes that the Deemed Provisions prevail as to the matters to have due regard. The following provisions of cl 67 are considered relevant:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
…
(g)any local planning policy for the Scheme area;
…
(m)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;
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
Clause 37 of TPS 4 divides the 'Scheme Area' into precincts with their own precinct planning policy. The subject site is located within the Triangle Precinct. The parties both refer the Tribunal to the City of Subiaco Planning Policy 4.8 Triangle Precinct Policy (Triangle Precinct Policy) which will be addressed later in these reasons. However, it is noted that section 4.1.2 of the Triangle Precinct Policy provides at C2.5 that:
The upper floors of buildings in areas zoned 'Residential R20' are to be set back from the primary street ground floor façade as follows:
i.So as to be located within the middle third of the lot; or
ii.So as to be wholly contained within the roof space.
Issue for determination
In assessing the proposal under the design principle found in clause 5.5.1 of the R Codes, the issue for the Tribunal to determine in this matter is whether the proposed ancillary dwelling compromises the amenity of surrounding properties. In determining that issue the Tribunal is to have due regard to:
a.Clause 42(1) of TPS 4 in relation to wall height;
b.The respondent's Triangle Precinct Policy; and
c.The context of built form in the locality.
Clause 42(1) of TPS 4
The proposal incorporates a maximum wall height of 5.8 metres which is 2.2 metres more than that which is allowed under cl 42(1)(a). However, a variation up to 6 metres in wall height under cl 42(1)(b) may be permitted where the respondent (and here the Tribunal), is satisfied that there is no undue adverse impact on adjoining residential sites and general amenity of the locality.
Mr Algeri, an experienced planner who provides expert evidence on behalf of the respondent, opines that whilst cl 42(1) is a provision consistent with the Model Scheme Text under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), it is in detail and substance unique to the respondent in that it provides height restrictions over and above those found in the R Codes. Mr Algeri is of the view that, given that the immediate locality is largely devoid of two storey development, particularly additional two storeys to the rear, then caution should be exercised in applying the discretion.
Mr Castelton, also an experienced planner who provides expert evidence on behalf of the applicant, opines that the 2.2 metres variation to wall height sought would not result in an adverse impact on amenity for the adjoining properties nor the general amenity of the locality. In particular, the wall height of 6 metres is relatively low, it would not be visible from Park Street and therefore have no adverse bulk and scale effect on the streetscape.
Mr Castelton is of the view that the proposal would not have any discernible impact on the amenity of surrounding properties and that by locating the second storey to the rear it actually mitigated any potential adverse amenity impact. The proposal is largely located away from habitable room windows to the east, and to the west it would have the least impact on the existing backyard and likely future outdoor living areas (as future development would most likely include a garage to the rear). Mr Castleton also notes the unusual height of the garage roof at No 16 Park Street which, whilst it sits below the 5.8 metres proposed at No 22 Park Street, is considerably higher than the height of a usual garage.
The Tribunal, having considered the evidence in detail and having had the benefit of a site visit does not accept Mr Algeri's view that the immediate locality is largely devoid of two storey development. For the reasons also expressed for the context of the built form in the locality considered later in these reasons, the Tribunal prefers the evidence of Mr Castleton in this regard. The Tribunal is satisfied that there is no undue adverse impact on adjoining residential lots or general amenity of the locality if the wall height was varied upwards to 5.8 metres.
Triangle Precinct Policy
Although the parties both refer the Tribunal to the Triangle Precinct Policy, the Tribunal is of the view that this policy does not apply to ancillary dwellings which are to be assessed under clause 5.5.1 of the R Codes.
The respondent relied on the requirement in clause C2.5 of the Triangle Precinct Policy that upper floors of buildings be located within the middle third of the lot. The Tribunal notes that clause C2.5 of the Triangle Precinct Policy does not appear to relate to the deemedtocomply provisions of the R Codes that it seeks to amend, replace or augment. Clause C2.5 has been inserted in the context of augmenting the deemedtocomply provisions of clause 5.1.2 street setback C2.3 and C2.4 of the R Codes which relate to secondary street setback. The ROW does not fit within the definition of a secondary street in the R Codes. In any event, the deemedtocomply provision found in clause 5.1.2 of the R Codes does not apply to an ancillary dwelling.
Mr Algeri is of the view that clause C2.5 of the Triangle Precinct Policy (and its predecessor in the City's Streetscape Policy) has planning merit and should continue to be applied as the middle third policy has a legacy which is evident in the City and locality. The Tribunal does not accept this view, and reiterates the Tribunal's view that the Triangle Precinct Policy does not apply to an ancillary dwelling.
Context of built form in the locality
Mr Algeri opines that the proposal is not indicative of the built form in the locality which has predominantly single storey built form. Further, the subject site is located within a local government where planning policies and schemes have been put in place to significantly control two storey development.
Mr Castleton opines that the proposal would not result in overdevelopment of the subject site. His view of the proposal was that it met key deemedtocomply requirements of the R Codes that predicate against overdevelopment such as setbacks and open space requirements. His view was that the proposal was distinguishable from the very large two storey developments that have occurred immediately to the east of the subject site at Nos 16 and 18 Park Street. Mr Castelton's view was that, unlike the subject site and the proposal, Nos 16 and 18 Park Street:
(a)contribute little to the character of an otherwise relatively intact historic streetscape;
(b)seem to occupy an inordinate amount of site area, particularly given their two storey nature; and
(c)are significantly higher overall than the proposed development.
The Tribunal, having considered the evidence in detail and having had the benefit of a site visit with the parties, prefers the opinion of Mr Castleton over that of Mr Algeri as to the proposal in the context of the built form in the locality.
The Tribunal accepts that the streetscape of Park Street is characterised by predominantly single storey frontages and a number of those are original iron roofed timber cottages such as the subject site. However the Tribunal does not accept the opinion of Mr Algeri that there are a limited number of two storey developments in the locality. When you move toward the rear of Park Street and into the ROW the built form in the locality is more varied, does include second storeys and increases in bulk and scale. Therefore the Tribunal does not accept that the bulk and scale of the proposal is significant in the context of the locality.
There are two storey properties in the immediate vicinity to the east of the subject site, at Nos 16 and 18 Park Street (No 20 Park Street does not exist) which are considerable in bulk and scale. There is also a two storey property to the rear of the subject site. The second storey to No 18 Park Street is located in the middle third of the lot, however the second storey of No 16 Park Street is located in the front, middle and partially in the rear third of the lot. The Tribunal finds that what is proposed on the subject site is of less bulk and scale than that presently found at Nos 16 and 18 Park Street. The ancillary dwelling only comprises 50m² in size. When the proposed ancillary dwelling is combined with the existing dwelling this built form is still smaller than the built form of Nos 16 and 18 Park Street in the context that all three sit on similar sized lots.
Of significance is that the outdoor living spaces of Nos 16 and 18 Park Street (which are smaller than that which is proposed to remain on the subject site) are to the east of their lots and would not be affected by the proposal. The backyard for No 26 Park Street (No 24 Park Street does not exist) to the immediate west of the subject site meet the overlooking and overshadowing deemedtocomply provisions (as it also does to the east). Visual privacy to No 26 Park Street is protected by the proposed screening.
Conclusion
For the reasons explained above, the Tribunal is of the view that in considering the requirements of TPS 4 and the R Codes that the proposal will not compromise the amenity of surrounding properties and should be approved, subject to conditions.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 1 December 2015 to refuse development approval is set aside.
3.The application for approval for an ancillary dwelling at No 22 (Lot 20) Park Street as shown on the plans and drawings date stamped 9 November 2015 is granted subject to the following conditions:
i.A screening device shall be erected and maintained at all times in accordance with the Residential Design Codes 2013 to a height of at least 1.6m above the finished floor level of the external stairs and landing to the western elevation of the building.
ii.All stormwater generated on site shall be retained on site. No stormwater shall be permitted to enter the City of Subiaco's stormwater drainage system unless otherwise approved.
iii.Brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, shall be finished externally to the same standard as the rest of the development.
iv.All external fixtures including, but not limited to TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems shall be integrated into the design of the building and not be visible from the primary street, secondary street or adjoining properties to the satisfaction of the City of Subiaco.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D QUINLAN, MEMBER
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