| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WILLIAMSON and CITY OF SUBIACO [2013] WASAT 165 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 3 SEPTEMBER 2013 DELIVERED : 7 OCTOBER 2013 FILE NO/S : DR 117 of 2013 BETWEEN : KANE WILLIAMSON Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords: Town planning - Development application - Refusal - Streetscape policy - Precinct policy - Locality varied containing a mix of single and two storey dwellings including some two storey grouped dwellings - Presumption of single storey residential - Two storey development restricted to 15% of site area - Preference for two storey development to be in middle third of site - Wall height - Overall height - Bulk - Scale - Character - Trees as part of character of street - Varied character of existing streetscape - Surrounding development - 50% threshold - Overshadowing - Noncomplying proposals - Clauses 27, 41, 42A and 78 of City of Subiaco Town Planning Scheme No 4 - Residential Design Codes of Western Australia (2013) - Policy requires protection of southern neighbour's solar access - Conflicting needs within streetscape policy - Amenity
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Legislation: City of Subiaco Town Planning Scheme No 4, cl 22, cl 23, cl 27, cl 27(4), cl 39(3), cl 41, cl 41(2), cl 42, cl 78, cl 78(1)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2013), cl 7.3.1, cl 7.3.1(a)
State Administrative Tribunal Act 2004 (WA), s 31(3) Result: Application for review allowed
Summary of Tribunal's decision: The applicant sought a review of the City of Subiaco's refusal to approve an application to demolish an existing dwelling and build a new two storey dwelling at No 11 Finlayson Street, Subiaco.
The application was refused by the City of Subiaco because '[t]he proposed dwelling would not satisfy Part 6.4 of Local Planning Policy 3.1 - Streetscape Policy as it would include an upper floor area larger than 15% of site area'.
The issues that arose in this matter were:
1) whether the proposal complies with the City of Subiaco Town Planning Scheme No 4, having particular regard to cl 27, 41, 42, 42A and cl 78;
2) whether the proposal complies with the City of Subiaco's Precinct Policy; and
3) whether the proposal is consistent with the City of Subiaco's Streetscape Policy.
This matter involved particular reference to cl 42(1) of the City of Subiaco Town Planning Scheme No 4 which varied the requirements of the Residential Design Codes of Western Australia (2013) and generally restricted single dwellings in the R15 and R20 zones to single storey. The clause described limited circumstances where increasaed height may be approved. The Tribunal did not agree with the City of Subiaco's submission that the proposal was noncomplying and failed cl 42A. The Tribunal found that cl 42A only applied to proposals that exceeded the discretionary limits set in cl 42(1)(b). The proposal was less than the height limits permitted by cl 42(1)(b) and therefore cl 42A did not apply.
The Tribunal accepted the City of Subiaco's argument that the Streetcape Policy had been consistently applied and that it had an important role in
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informing the City of Subiaco on the appropriate application of discretion available in cl 42(1)(b) of the City of Subiaco Town Planning Scheme No 4.
In this case, the Tribunal considered that the City of Subiaco had inflexibly applied the Streetscape Policy. The Tribunal found that, due to the particular characteristics of Finlayson Street and the relationship between the applicant's proposed upper level and the southern neighbour's dwelling, the proposal complied with the requirements of the Streetscape Policy. For similar reasons, the Tribunal found the proposal complied with the Precinct Policy.
Having regard to the above findings, the Tribunal concluded that, in accordance with cl 42(1)(b) of the City of Subiaco Town Planning Scheme No 4, the proposal's increased height did not have an adverse impact on the adjoining resudential sites or the general amenity of the locality.
The Tribunal found that the proposal complied with all relevant City of Subiaco Town Planning Scheme No 4 requirements and that discretion should be used to approve the demolition of the existing dwelling and the development of the proposed new dwelling.
Category: B
Representation: Counsel:
Applicant : Self represented
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Freeman and City of Subiaco [2008] WASAT 303
Fryer and City of Subiaco [2006] WASAT 199
Tooth and City of Subiaco [2005] WASAT 317
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These proceedings involve an application brought by Mr Kane Williamson (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Subiaco (City or Council) made on 12 March 2013 to refuse to grant development approval for a new residence at No 11 (Lot 109) Finlayson Street, Subiaco (site or subject land). 2 The initial application was lodged on 12 December 2012 by the applicant. The City's planners identified various matters that required attention, including access to the rear garage and setbacks to parts of the proposal. Following meetings between the applicant and the City's planners, a revised proposal was submitted on 25 February 2013 that addressed the setbacks and garage access. 3 The City's planners prepared a report on the proposal for consideration by the City's Development Services Committee (Committee) on 12 March 2013. The report recommended refusal because the 'proposed dwelling would not satisfy Part 6.4 of LPP 3.1 [City of Subiaco Local Planning Policy 3.1 Streetscape Policy or Streetscape Policy] as it would include an upper floor area larger that 15% of site area'. The report continued with the advice that Council had discretion to approve the proposal 'if Council were of a mind that the proposed dwelling would be compatible with the streetscape and would not impose a significant adverse impact to adjoining residential development'. 4 The Committee, acting under delegated authority, resolved to refuse the application. 5 After the applicant lodged the application for review, the Tribunal referred the matter to mediation. A modified proposal was reconsidered by the City after the Tribunal issued an order under s 31(3) of the State Administrative Tribunal Act 2004 (WA). The modified proposal was also refused. By consent of the parties, the proposal that was originally refused by the City on 13 March 2013 was the matter that became the subject of this review. At the hearing on 3 September 2013, both parties confirmed that the modified proposal with drawings dated February 2013 is the proposal to be reviewed by the Tribunal. (Page 6)
6 Some of the documents submitted by the parties contained references to the mediation. The sections of the documents that contained references to the mediation were deleted from the documents at the beginning of the hearing and were not considered by the Tribunal in the determination of this review.
Site and locality 7 The site has a rectangular shape with a street frontage of approximately 9.98 metres, a length of approximately 35.07 metres and a stated area of 352 m2. There is a fall of approximately 1,000 millimetres from the front of the site to the rear. There is a 3.2 metre wide right of way at the rear of the site. 8 The site is located in the City's 'Triangle Precinct' contained within the area bound by Rokeby Road, Hay Street and Kings Park. The Triangle Precinct Policy describes the precinct as 'a highly cohesive, inner urban residential area. It represents an excellent example of the ''classic'' Subiaco residential character with high quality Federation style houses on small lots set in intimate streetscapes. A large number of the houses and streetscapes have heritage value'. 9 Finlayson Street is a relatively short street running from Heytesbury Road to a cul de sac at Thomas Street. During the hearing, the degree to which the streetscape is intact was subject to considerable disagreement between the parties. The character of the streetscape is a central element of this review and is fully discussed later in these reasons. 10 The site currently accommodates an existing single storey 1960s dwelling with a carport in front of the dwelling. The parties agreed that the existing house does not make a positive contribution to the streetscape. 11 The small narrow site is typical of the street. The long axis of the site runs east-west, and consequently, solar access is a factor in the design. Also relevant are two boundary walls belonging to the neighbouring properties. The northern neighbour (at No 13 Finlayson Street) has a boundary wall approximately 3 metres high and 8 metres long. The southern neighbour (at No 9 Finlayson Street) has a boundary wall which varies in height from 3.4 to 4.7 metres and is 17 metres long. (Page 7)
12 The Tribunal had the benefit of a viewing of the site, the full length of the street and some adjoining streets in the locality. The viewing was conducted on the morning of the hearing in the company of the parties and witnesses.
Planning framework 13 The site is zoned Urban under the Metropolitan Region Scheme (MRS). The site is zoned Residential and has a residential density coding of R20 under the City of Subiaco's Town Planning Scheme No 4 (TPS 4 or Scheme). The site is located within the City's Triangle Precinct. The proposed development is classified as 'Dwelling: Single' under TPS 4 and is a permitted use in the zone. Clause 22 of TPS 4 requires development approval from the Council. The exemptions under cl 23 of the Scheme do not apply because the proposal requires the exercise of discretion by the Council. 14 Clause 27(4) of the Scheme requires the City to have regard to various matters which are discussed in greater detail later in these reasons. 15 Clause 39(3) of the Scheme provides as follows: Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of those Codes. 16 The current and correct reference that will be used throughout these reasons is to the Residential Design Codes of Western Australia (2013) (R Codes). 17 Clause 41(2) of TPS 4 deals with the aims and objectives of the residential zone. Subclauses (b), (c), (f) and (g) were identified as matters to consider in the review, and the detailed provisions are discussed later in these reasons. 18 Clause 42(1) of TPS 4 provides for a special application of the R Codes and, in subclause (a), sets height limits and, in subclause (b), provides for a limited variation to the standards set in cl 42(1)(a). These clauses are central to the outcome of this review and are discussed in greater detail later in these reasons. 19 The City argued that cl 42A of TPS 4 'Determination of Application Where Wall/Overall Height is Non Compliant' is applicable. The applicant argued that that clause is not applicable. The relevance of cl 42A of TPS 4 is discussed later in these reasons. (Page 8)
20 Clause 78 is also relevant because the applicant questioned the validity of the City's Streetscape Policy. 21 A key element of the planning framework in this review is the City's Streetscape Policy. It must be noted that application of this policy extends beyond streetscape issues and amplifies the provisions of the Scheme that seek to limit the height of dwellings to single storey. Relevantly, the policy limits second storey height to 15% of the site area and requires the second storey to be located in the middle third of the site. The Streetscape Policy describes particular circumstances where the above provisions of the policy may be varied; these generally relate to the existing character of streetscape. 22 To properly deal with the application with reference to the character of the existing streetscape, it is also necessary to refer to the locality's precinct policy: Triangle Precinct (Precinct Policy). 23 Both of these policies are critical to the outcome of this review and are considered in detail later in these reasons.
Proposed development 24 The proposed development is to demolish the existing dwelling and build a new two storey dwelling with a garage located at the rear of the site with access from the right of way. 25 Significantly, the upper floor is 20.7% of the site area with just over half of the upper floor located in the front third of the site. The applicant, in a submission to Council, explained that the location of the upper storey was a direct consequence of consultation with the southern neighbour for protection of that neighbour's solar access. 26 Under delegated authority, the Council's Development Services Committee, at its meeting on 12 March 2013, resolved to refuse the application because '[t]he proposed dwelling would not satisfy Part 6.4 of Local Planning Policy 3.1 - Streetscape Policy as it would include an upper floor area larger that 15% of site area'.
The issues 27 The City proposed two issues and the applicant added another five for determination in this review. After reviewing the submitted witness statements, it became apparent that all issues raised by the parties could be captured within three broad issues. (Page 9)
28 Therefore the Tribunal will consider the following issues: 29 The Tribunal will address each issue in turn.
Whether the proposal complies with TPS 4 having particular regard to cl 27, cl 41, cl 42, cl 42A and cl 78 30 Clauses 41, 42 and 42A of TPS 4 are not typically found in town planning schemes and draw particular attention to aspects of amenity considered important in Subiaco. These clauses, together with local planning policies, place increased emphasis on aspects of cl 27, which describes matters to be considered by Council when determining a development application.
Clause 78 of TPS 4 and validity of the Streetscape Policy 31 Before considering the above clauses, the Tribunal will refer to cl 78 of TPS 4. This clause is directly relevant to an issue raised by the applicant. The applicant questioned whether the City's Streetscape Policy was consistent with the R Codes and whether aspects of the policy required endorsement by the Western Australian Planning Commission. 32 Clause 78 of TPS 4 allows the City to prepare and adopt local planning policies. Subclause (1) provides: 33 The applicant argued that the Streetscape Policy lacked validity. In his statement of issues, facts and contentions (SIFC), he stated that: (Page 10)
The Residential Design Codes 2013 were gazetted on 2 August 2013. Part 7.2 states in relation to pre-existing local planning policies that if a properly adopted local planning policy which came into effect prior to the gazettal of the R-Codes is inconsistent with the R-Codes, the R-Codes prevail over the policy to the extent of the inconsistency. The Applicant contends that the current streetscape policy has not been properly adopted and there is no provision for a local planning policy to restrict the amount of upper floor area without endorsement form WAPC. 34 The City argued that cl 7.3.1 of the R Codes permits local planning policies. Furthermore, under the cl 42(1) of the Scheme, the starting point is single storey dwellings. The Streetscape Policy contains provisions that amplify circumstances that may warrant increases in height for second storeys. 35 The City, at the hearing, argued that cl 7.3.1(a) of the R Codes permits the City to vary 'deemed to comply' provisions that deal with various matters, including street setbacks and building height. During the hearing, the Tribunal asked for responses on this question from the applicant and from both of the planning experts. After examination of this matter, both planning experts agreed that the Streetscape Policy had been properly adopted. On the question of whether the policy contained provisions that could not be varied from the R Codes, both experts and the Tribunal agreed that the policy's provisions related to setbacks and heights which were both areas permitted variations by the R Codes. 36 Even if the Tribunal is wrong in this interpretation of the application of the R Codes, the Streetscape Policy relates to cl 41 and cl 42 of the Scheme which deal with the height and other aspects of dwellings. The Scheme specifically restricts the height of dwellings to single storey and describes limited circumstances where the height may be increased. 37 The Streetscape Policy has been adopted under the provisions of cl 78 of TPS 4 and directly relates to providing more detail on the height of dwellings. The Streetscape Policy is consistent with the Scheme. The Tribunal considers the Streetscape Policy valid.
Clause 27(4) of TPS 4 38 In the City's SIFC, the Tribunal was referred to cl 27(4) of TPS 4 that requires Council to consider various matters when determining a development application. The matters noted by the City were: (a) the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme; (Page 11)
(b) any relevant planning policies; (c) a statement of planning policy of the Western Australian Planning Commission; (d) any planning study approved by the Council; (e) any submission accompanying or relating to the application; (f) the orderly and proper planning of the locality; (g) the conservation of the amenity of the locality; (h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure; [and] (i) the conservation of places and areas of cultural heritage significance as referred to in clauses 58 and 59. 39 After referring to subclauses (c), (d) and (i) of cl 27(4) of TPS 4, the City did not present any substantive arguments suggesting that any of these matters were reasons to refuse the proposal. This is especially relevant with reference to subclause (c) of cl 27(4) which would include the R Codes. During the hearing, one of the few areas of agreement between the planning experts was that the proposal complies with the R Codes. 40 Clauses 27(4)(a) and 27(4)(b) of TPS 4 are discussed elsewhere in these reasons. There is no matter of orderly and proper planning that arises out this application that is not addressed elsewhere in these reasons. 41 Clause 27(4)(e) of TPS 4, dealing with submissions from neighbours, will be considered in the context of amenity and the policies. Similarly, the proper application of cl 27(4)(g) and cl 27(4)(h) of TPS 4 is best considered in the context of the Streetscape Policy and the Precinct Policy.
Clause 41(2)(f) and cl 41(2)(g) of TPS 4 42 Clause 41(2) of TPS 4 provides that, when considering an application in the residential zone, the Council shall have regard to various objectives including: (Page 12)
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[.] 43 'Amenity' is defined in TPS 4 as 'all those factors, which combine to form the character of an area and include the present and likely future amenity'. 44 Before considering the arguments of the parties, the Tribunal notes that proper consideration of these clauses, like consideration of cl 27 of TPS 4, requires a detailed assessment of the proposal in the context of the Streetscape Policy and the Precinct Policy.
Clause 42(1)(a) and cl 42(1)(b) of TPS 4 45 Clause 42(1) of the Scheme provides as follows: (1) Residential Zone : R Code Density R15 and R20 46 The parties agreed the maximum height of the overall building of the proposed building is 7.45 metres, which exceeds the maximum overall height of 6.5 metres prescribed by cl 42(1)(a) of TPS 4 by 950 millimetres. However, it is significantly less than the discretionary height of 9 metres permitted by cl 42(1)(b) of TPS 4. 47 Similarly, the maximum wall height of the proposed building is stated as 5.57 metres, which exceeds the standard of 3.6 metres by almost 2 metres. Nevertheless, it is below the discretionary maximum of 6 metres permitted by cl 42(1)(b) of TPS 4. 48 Therefore, the application cannot be approved unless the Tribunal is satisfied that there is to be no undue adverse impact on adjoining (Page 13)
residential sites or on the general amenity of the locality. Once again, the Tribunal notes that proper consideration of these clauses and their amenity standards requires consideration of the policies. 49 However, before proceeding to the detailed arguments of the parties with reference to amenity and application of the policies, it must be observed that cl 42 of TPS 4 has particular significance, and requires higher standards than may be normally expected. 50 As this Tribunal found in Fryer and City of Subiaco [2006] WASAT 199 at [80]: While in other local government areas which do not have the equivalent of cl 42(1) in their applicable schemes, the extent of impact on Mr Prudence's backyard in terms of loss of aspect of sky and trees and the consequential bulk and scale, might not be an undue adverse impact, in the particular planning context of cl 42(1), the Tribunal finds that it is. 51 The significance of cl 42(1) of TPS 4 was emphasised by Mr Alan Stewart, a planning expert who appeared as a witness and counsel for the City. In closing, he observed that cl 42(1) of TPS 4 limits dwellings to single storeys and that '[i]f a proponent wants a second floor, they have to earn it'. 52 Mr Stephen Allerding, who appeared as an expert planning witness for the applicant, also acknowledged the significance of cl 42(1) of TPS 4. 53 One of the few areas of agreement between Mr Stewart and Mr Allerding was that determination of whether the proposal complied with cl 42(1) of TPS 4 required assessment of the proposal in terms of the Precinct Policy and the Streetscape Policy. 54 Before turning to consideration of the policies, it is necessary to deal with cl 42A of TPS 4.
Clause 42A(1) and cl 42A(2) of TPS 4 55 This clause limits the discretion available to the Council. Mr Stewart argued that, even if the proposal was found to comply with other aspects of the planning framework, the application could not be approved because cl 42A of TPS 4 removes the Council's discretion to approve the proposal. 56 Clause 42A of TPS 4 provides specific provisions to enable Council to exercise discretion to approve a proposal that does not comply with the height limits set by cl 42 of TPS 4. (Page 14)
57 Clause 42A of TPS 4 provides that: (1) If a development is the subject of an application for planning approval and does not comply with the maximum overall height or the maximum wall height referred to in clause 42, then, despite the non-compliance, the Council may approve the application where: (a) the Council is satisfied that: (b) the wall/overall height which is non-compliant: (i) meets the Acceptable Development standards of the Residential Design Codes in relation to setbacks; or (ii) is necessitated by a sloping site and would be unlikely to occur if the site had been level; or (iii) is the result of a irregular roof design and is unlikely to have occurred if the proposed development had a conventionally shaped roof. (2) For the purpose of this clause the expression 'surrounding development' may be defined in a planning policy. … 58 Mr Stewart argued that under cl 42A of TPS 4, the Council does not have discretion to approve the proposal. He argued there was noncompliance with cl 42A(1)(a)(i) of TPS 4 because the noncomplying height will have an adverse impact on the amenity of the locality, and also noncompliance with cl 42A(1)(b)(ii) of TPS 4 because the proposed height was incompatible with the wall heights and overall heights of surrounding residential development. 59 On the other hand, Mr Allerding argued that there was no adverse impact on the locality and that the proposal was compatible with the wall heights and overall heights of surrounding residential development. (Page 15)
60 However, there was a more fundamental area of disagreement between the experts, and that was whether cl 42A of TPS 4 is applicable. Before turning to that question, the Tribunal notes that if cl 42A of TPS 4 is relevant, resolution of the conflict between the experts on the application of cl 42A of TPS 4 once again requires consideration of the policies. 61 Mr Allerding argued that cl 42A of TPS 4 does not apply, because that clause only applies to noncomplying heights. Clause 42(1) of TPS 4 provides for discretion to approve increased heights of 6.5 metres for walls, and 9 metres for the overall height. He stated that, because the proposal complied with the heights subject to discretion, they were not noncomplying. The heights would only become noncomplying and subject to cl 42A of TPS 4 if they exceed the maximum heights provided for in cl 42(1) of the Scheme. 62 Mr Stewart did not agree, and argued that any proposal exceeding the lower limits in cl 42(1) of TPS 4 was noncomplying and required the application of the higher standards set in cl 42A of the Scheme. 63 The Tribunal agrees with Mr Allerding. Clause 42A of TPS 4 would only be applicable if the applicant was seeking heights that exceeded the increased heights permissible by the use of discretion in cl 42(1) of the Scheme. This finding is consistent with the findings of this Tribunal on the same question in Freeman and City of Subiaco [2008] WASAT 303, where, at [135] - [137], the Tribunal found: (Page 16)
As observed in [68], the applicant sought approval for a height that exceeded the discretion available in cl 45(4)(b) of TPS 4, and therefore sought approval for a non-complying height – that is, a height that exceeds the height that the Council may approve. 64 In the matter subject of this review, the applicant seeks approval for a height that is provided for in cl 41(1)(b) of TPS 4, and therefore it is not non-complying. Clause 42A of TPS 4 would only apply if the heights exceed the limits provided for in cl 42(1)(b) of the Scheme.
Whether the proposal is consistent with the City's Streetscape Policy 65 The objectives of the Streetscape Policy are: 1) To ensure that new development is consistent with the character and in particular the scale of existing residential development; 2) To ensure that new development is designed having regard to the issue of crime prevention and surveillance of the street and housing entrances; 3) To encourage creative and quality design solutions that meet the standards of this policy and enhance the character of existing residential areas; and 4) To protect the amenity for adjacent properties, with reference particularly to solar access, day-lighting and privacy. 66 The Streetscape Policy contains two relevant definitions which, in part, are: 67 The question of surrounding development became contentious because various concessions are available under the policy if the applicant can demonstrate the proposal is consistent with 50% of surrounding development. (Page 17)
68 Before assessing whether the 50% threshold is crossed, it is necessary to consider Mr Stewart's argument that he has 'not included the twostorey grouped dwellings at No. 2 - 6 Finlayson Street in my streetscape assessment because I consider those buildings to be uncharacteristic examples of development in the area'. 69 This is a significant argument because the applicant needs the townhouses to be included if the 50% threshold is to be reached. The Tribunal notes that the 50% threshold is not an absolute limit. The Streetscape Policy correctly describes the 50% threshold as nominal. 70 Mr Stewart's argument is not merely a convenient argument to ensure the mathematics work in the City's favour. His argument is based on clause 5.3(1) of the Streetscape Policy, which provides: New development or alterations or extensions to existing development, are to have a comparable scale and proportion to surrounding development as viewed from the street unless it can be demonstrated that the surrounding development is not desirable or representative. Uncharacteristic examples of buildings will not be considered in the streetscape assessment[.] 71 Mr Allerding strongly disagreed with Mr Stewart's argument. In the hearing, Mr Allerding stated that, although it may be possible to argue that 'uncharacteristic' refers to a 'one-off' situation, it is artificial to extract elements to make the policy work in the City's favour. 72 The Tribunal agrees with Mr Allerding. In the ordinary interpretation of policy, the City cannot dispose of inconvenient elements of surrounding development. If such an approach was taken, it would become almost impossible for an applicant to meet the 50% threshold when the number of two storey dwellings in surrounding developments is close to the threshold. Even if it was possible for the City to dispose of unusual elements such as a turret, spire or other similar elements, in this case, it is not possible to dispose of the five, two storey townhouses that comprise a significant proportion of the two storey elements in the surrounding development. Due to the particular configuration of this short street, the number of dwellings in the surrounding development is 15 if the townhouses are included, or only 10 dwellings if the townhouses are excluded. It is inconsistent with the ordinary application of policy to ignore 33% of the dwellings because it does not suit the City's purposes. 73 This finding does not mean that the applicant has crossed the threshold or that the development is consistent with surrounding (Page 18)
development. It merely means that the five town houses will form part of the assessment of surrounding development. 74 Mr Stewart referred to clause 6.2 of the Streetscape Policy 'Development Standards for Houses of Increased Height', which provides as follows: The Scheme imposes height limits on development in the R15 and R20 Zones but provides the Council the ability to approve development of increased height where it is satisfied that 'there will be no adverse impact on adjoining residential sites or the general amenity of the locality'. The requirements of the Scheme may only be satisfied subject to meeting the standards contained within part 6 of this policy. 75 Mr Stewart also referred to clause 6.3 of the Streetscape Policy that requires houses to be designed so as to appear 'as a predominantly single storey house as viewed from the primary street where the surrounding development is predominantly single storey (nominally greater than 50%)'. 76 Mr Stewart presented a detailed assessment of every dwelling in Finlayson Street, including those dwellings at either end of the street that faced Heytesbury Road and Thomas Street. The assessment was summarised in an aerial photograph which was an attachment to his witness statement. This was a rational assessment recognising the short length of Finlayson Street. The attachment showed those dwellings that were within a 50 metre radius, and also those dwellings facing Finlayson Street that comprised surrounding development. Both methods capture the same number of dwellings: 10 properties excluding the townhouses, and 15 properties including the townhouses. As discussed above, Mr Stewart identified the five townhouses as 'two-storey grouped dwellings … uncharacteristic examples of development'. 77 The attachment shows three out of 10 dwellings containing two storey elements when the townhouses are excluded, or eight out of 15 dwellings when they are included. 78 During the hearing, Mr Stewart did not concede that the townhouses should be included. He maintained his position that they are uncharacteristic because they are grouped dwellings built in the 1980s, in a street that is otherwise single residential. Nevertheless, he argued that even if they were included, the 50% threshold was not met. 79 Mr Stewart argued that, even if the five townhouses are included in the assessment, the remaining dwellings are predominantly single storey (Page 19)
when viewed from the street. He acknowledged that the dwelling at No 3 - 5 Finlayson Street had a second storey element clearly visible from the street. However, he argued, that the bulk of the dwelling, when viewed from the street, was clearly single storey. Similarly, he argued that although the house at No 13 Finlayson Street had a two storey element, it was towards the rear of the house, and No 13 was also predominantly single storey. The only house that appears as an obvious two storey dwelling was at No 21 Finlayson Street. This house is at the extreme edge of surrounding development and therefore receives less weight under the policy provisions. He argued that the only two storey dwellings visible from the street are the five townhouses and the dwelling at No 21, making a total of six out of 15 dwellings; therefore less than 50%. He concluded that because the streetscape was predominantly single storey and the proposal was clearly a two storey dwelling, it is not possible or reasonable to approve the proposal because of the policy provisions that provide detail to support the single storey requirements of the Scheme. 80 Clause 6.3 of the Streetscape Policy also contains a requirement for two storey development to be in the middle third of the lot. The clause acknowledges there may be circumstances where it is not possible to achieve this standard and notes: The primary concern of the City is to maintain an attractive streetscape. As such, the City may permit two storey development located outside of the middle third of the lot where more than 50% of properties within a 50m radius exhibit similar development. 81 Mr Stewart argued that one reason the proposal appeared predominantly two storeys was because most of the second storey element was in the front one-third of the site. In this instance, a 50 metre radius captured the same dwellings as surrounding development, and for the same reasons as above, he argued the proposal could not be supported. 82 Mr Stewart then referred to clause 6.4 of the Streetscape Policy 'Houses of Increased Height: Design Standards'. This clause sets out design standards in relation to maximum height, upper floor area, and overshadowing of adjoining properties. 83 The 'maximum height' design element stipulates a design standard of '[w]all heights of up to 6 metres and overall height of up to 9 metres'. This standard restates the maximum discretionary heights prescribed by cl 42(1)(b) of the Scheme. This standard is clarified by a footnote which (Page 20)
requires development to 'have a comparable scale and proportion to surrounding development as viewed from the street'. 84 The upper floor area design element stipulates the following design standard: Maximum floor area of the footprint of the portion of the building of increased height is not to exceed 15 per cent of the site area. 85 The overshadowing of adjoining properties design element sets out design standards which state: 86 Mr Stewart argued that because the upper floor area was 20.6% of the site and was in the front third of the site, it would not 'have a comparable scale and proportion to surrounding development as viewed from the street'. He noted the only comparable dwelling was at No 21 Finlayson Street, which was situated 50 to 60 metres away from the review site. He noted that the dwelling at No 21 was obviously incompatible with the streetscape, and that it would be inconsistent with the Streetscape Policy and the Scheme to replicate that problem on the review site.
The applicant's case 87 The applicant presented evidence on his own behalf supported by Ms Gemma Smith, the managing director of Hocking Heritage Studio who holds qualifications in planning and building conservation, and Mr Allerding. 88 The applicant stated that the design evolved after careful consideration of the City's entire, complex planning framework. Despite the modest scale of the proposed dwelling, the small site meant that, inevitably, some of the design would need to be at an upper level. The restrictions on the upper level development were not the only constraints on the design. Policies also required car parking at the rear of the site, and attention to details such as design characteristics and the surveillance of the street. In addition to the policy constraints and the small size of the site, both neighbours had existing boundary walls, (Page 21)
and the east-west orientation of the narrow sites had obvious implication on solar access. 89 The applicant was of the opinion that Finlayson Street 'is not a heritage street and there is no dominant style of home or particular character and scale as viewed from the street'. It was this opinion that led to the design outcome, with preference to protecting neighbours' amenity, and particular preference to protecting the southern neighbour's sunlight. He argued that the only way to protect the southern neighbour's solar access was to locate the upper level as far forward as possible. Consequently, most of it had to be outside the middle third of the lot and in the front third of the lot. 90 The applicant noted there were no objections to the proposal, and that the only submission the Council received was a letter of support from his southern neighbour. 91 The neighbour's letter to Council included the following comments: Mr and Mrs Williamson have spent a great deal of time discussing their plans with us … [The plans] have been carefully created to not only minimise any negative impact on our privacy, but also to ensure maximum access to sunlight as well as offering a sympathetic streetscape compatibility. 92 During the hearing, the plans were carefully examined with reference to the plans of the southern neighbour's house. The current proposal has the upper level aligned with the front of the dwelling in the front third of the lot, with about 50% in the middle third. This arrangement generally lines up with the neighbour's boundary wall. The Tribunal accepts that any movement of the upper level development further into the middle third of the lot will adversely impact on the southern neighbour's sunlight. 93 During the hearing, both Mr Allerding and Ms Smith had to expand their witness statements on the matter of the 50% threshold. Their witness statements were partially based on the City's SIFC, which included the City's acceptance that the 50% threshold had been crossed. For example, the staff report to the March Council meeting noted that '(9 of 16 properties within surrounding development are two storey; this representing 56.2%)'. In the City's SIFC, part of one of the contentions was 'whilst more than 50% of the surrounding development is two storey, the majority of the dwellings present a single storey façade with [a] two storey element set back within the property'. (Page 22)
94 Using Mr Stewart's aerial photograph summarising his assessment of surrounding development and the 50 metre radius, both Mr Allerding and Ms Smith presented detailed assessments of each property. This was made with reference to the viewing held in the morning. After considering all the arguments, the Tribunal agreed that the 50% threshold was crossed. Even if the threshold had not been crossed, there was sufficient doubt to enable that proposal to be considered on its merits, both within the context of the Streetscape Policy and the Scheme. 95 Mr Allerding argued that the proposal complies with the overall intent of the Streetscape Policy, which is to protect intact streetscapes. He argued that the streetscape was not intact, and that the proposed design respected predominant architectural and planning characteristics of the street. He noted that when the 50 metre radius was applied, the property on the corner of Thomas Street became technically relevant. He further noted that this dwelling faces Finlayson Street. The front door and letter box face Finlayson Street. This property has a small two storey section, and, more significantly, it has a large garage structure with a noticeable impact on the streetscape. 96 Mr Allerding also reasonably referred to the large evergreen street trees which are a substantial part of the character of the street. The Tribunal considers this comment relevant, particularly with reference to the Streetscape Policy's definition of 'Character', which includes the 'interplay of built form [and] vegetation'. Mr Allerding correctly observed that the trees act as a filter along the entire length of the street, and that individual built forms are not clearly seen unless standing under the trees on the footpath. 97 In summary, Mr Allerding argued that those dwellings within the surrounding development comprise a mixture of development forms and types, including upper level developments outside the middle third. Mr Allerding considered the proposed location of the upper level development is appropriate within the context of the streetscape, and is the preferred location. He argued that the City's preference for the middle third would have a significant adverse impact on the southern neighbour's amenity. He also observed that the increased upper floor area would only be marginally perceptible from the street, and thus, would have no adverse impact on the streetscape. 98 Ms Smith's assessment of the streetscape was that: Much redevelopment has occurred along the street with a number of the original housing stock having been demolished with subsequent two storey (Page 23)
developments constructed in the mid-to-late 20th century. Original houses have also been adapted with single and storey additions to the rear. It is considered that over 50% of the properties along Finlayson Street are two storey developments. … A sense of coherency of streetscape is achieved through retention of the regular subdivision pattern along the western side of the street, the street trees along both side[s] of the street and the rhythm of boundary treatments along the western side of the street. There is no coherency in architectural form along either side of the street. 99 In reference to the proposed development within the context of the Streetscape Policy, Ms Smith stated, in part: The proposed development is consistent with the mixed architectural character of the Finlayson Street. The contemporary design incorporates features influenced by the original building stock thereby tying it in with the overall character of the area. As Finlayson Street itself does not have a predominant character created by a dominant architectural style or form, the simple design to the front of the proposed development will serve to achieve the objective of the policy of retaining character and enhancing the streetscape. …. The proposed development has been designed to take account of the constrained site conditions and impacts of development upon the neighbouring properties. … … The proposed development presents as a two storey dwelling to the street with the upper storey portion being at the front. Over 50% of the housing stock in Finlayson Street has a two storey element either by way of additions or being redevelopments. … The proposed development is in keeping with the scale and proportion of the mixed development along Finlayson Street. … The policy seeks to maintain attractive streetscapes and whilst Finlayson Street is attractive in the sense it is a tree-lined street with green verges and an intimate character which contributes to the essential Subiaco character, in architectural terms there is no coherent form. (Page 24)
100 Ms Smith made a detailed assessment of the proposed architectural design and noted its inclusion of traditional architectural features, and concluded that, in the context of the mixed character of the street, the proposal 'makes a positive contribution to this mixed character'. 101 The Tribunal accepts that the Streetscape Policy has been consistently applied by the City and has an important role in informing the City on the appropriate application of discretion available in cl 42(1)(b) of the Scheme. In determining this review, the Tribunal agrees with the City, that significant weight should be given to the Streetscape Policy in determining this review. This is consistent with the Tribunal's previous findings in Tooth and City of Subiaco [2005] WASAT 317 (Tooth) that the Tribunal should not undermine the regulatory regime of the City, including its policies. 102 This finding in Tooth was consistent with the principles explained by Barker J in Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 where, at [24], he stated: … If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach. 103 The experts submitted comprehensive assessments of the proposal in the context of the Streetscape Policy. Despite the thoroughness and details of Mr Stewart's arguments, the Tribunal found that the expert evidence of Mr Allerding and Ms Smith was more consistent with the reality of the existing streetscape, and more correctly assessed the proposal within the context of the policy and its impact on the amenity of streetscape and the neighbours. 104 With reference to both surrounding development and the 50 metre radius criteria, the Tribunal found that the 50% threshold had been crossed. This assessment is consistent with both of the applicant's experts, the City's SIFC, and the planning report prepared by the Council's staff. Even if the threshold was not crossed, it was clear from the expert evidence of Ms Smith that the street had a mixed architectural character and, apart from the trees, subdivision patterns and boundary treatments, there was no coherency in scale or built form. (Page 25)
105 The Streetscape Policy permits the upper floor, if it is 15% or less of the site area and is located in the middle third of the site. Leaving aside the fact that the floor area exceeds 15%, the Tribunal recognised the City faced a difficult decision on applying the middle third component of the Streetscape Policy, regardless of whether the floor area was reduced to 15%. In order to comply with the primary concern of clause 6.3 of the policy of maintaining an attractive streetscape, the upper floor would need to be pushed back into the middle third. The consequence of that is an immediate breach of objective 4 of the Streetscape Policy, because the neighbour's amenity would not be protected, particularly with reference to solar access. On the other hand, protecting the neighbour's amenity requires the upper level to encroach as far as possible into the front third. 106 This would be a difficult decision in a pristine streetscape of small lots with inevitable design requirements for an upper storey component, even in modest family dwellings. However, in this case, the streetscape is not even close to pristine, with no coherency in the architectural forms. Despite the efforts of Mr Stewart, the applicant's experts were able to establish to the Tribunal's satisfaction that the proposal would not have a negative impact on the streetscape. Furthermore, there was clear evidence that any move backwards of the upper level would have a significant adverse impact on the southern neighbour. 107 It is undisputed that the upper floor area exceeds 15% and that it is 20.6%. This represents an extra 20 m2. In some situations, that increase may be significant but, in this case, based on the evidence within the context of the streetscape and neighbouring houses, the extra 5.6% does not have an adverse impact on the streetscape or neighbours. 108 Therefore, the Tribunal finds that the proposal complies with the Streetscape Policy. This finding does not undermine the planning principles behind the policy. For the reasons described above, the Tribunal found that correct application of the policy to the proposal, in this particular streetscape, is to approve the increased upper level floor area, and to approve it with a significant portion in the front third of the site.
Whether the proposal is consistent with the City's Precinct Policy 109 The Precinct Policy states that the 'Desired Future Character' of the area includes the following: 1. The primary nature of the Precinct is as a residential area of significant heritage character which should be reinforced. (Page 26)
The retention and renovation of the Gold Boom and Interwar housing stock should be promoted and encouraged. 2. Any change or redevelopment should reflect the scale, character, details and materials of the buildings within the street block or immediate vicinity, including front and side setbacks, verandahs, fencing and vehicular access. 110 The relevance of the Precinct Policy is that it reinforces the importance of the retention and protection of the existing streetscape character. 111 Mr Stewart observed that the Precinct Policy describes the 'Existing Character' of the Triangle Precinct as a 'highly cohesive, inner urban residential area' and notes that residences are 'generally single storey houses on single lots'. With respect to the 'Desired Future Character', the Precinct Policy seeks to reinforce the residential nature and heritage character of the precinct by encouraging retention of the original housing stock. Where this does not occur, the Precinct Policy states: Any change … should reflect the scale, character, details and materials of the buildings within the street block or immediate vicinity[.] 112 Mr Stewart acknowledged that the proposed demolition of the 1960s dwelling was not inconsistent with the Precinct Policy. However, he argued that he did 'not consider the scale of the proposed new dwelling to be consistent with the Desired Future Character of the Triangle Precinct because it does not reflect the scale of buildings within the street block or immediate vicinity'. 113 The Precinct Policy extends the area of the street under consideration from surrounding development and a 50 metre radius to the street block (which, in this case, is the entire street). 114 The Precinct Policy does not advance the case argued by Mr Stewart in terms of Finlayson Street. The addition of the extra dwellings within the street block generally supports the applicant's case. At the southern end of the street is No 187 Thomas Street, which faces Finlayson Street and has a substantial garage and a small two storey component visible from Finlayson Street. On the other side of the street is the house at No 23 - 25 Finlayson Street, which has a two storey element at the rear. At the northern end of the street, No 23 Heytesbury Road has a two storey element clearly visible from Finlayson Street, as does No 21b Heytesbury Road. The only additional dwelling covered by this policy without a two storey component is No 21a Heytesbury. (Page 27)
115 Even without these additional dwellings, the applicant has already established that the 'Character' of Finlayson Street, is not consistent with the 'Character' of the Triangle Precinct. 116 The locality is also a problem for the City. For example, within the Triangle Precinct, and close to the review site, is an area of higher density with new two storey dwellings. But even ignoring the area of higher density, the Tribunal accepts the evidence of Ms Smith, who is a heritage expert, that the Triangle Precinct does not have a blanket character. There are areas of high intactness; however, this does not apply to Finlayson Street or to the immediate locality. 117 Ms Smith provided a detailed assessment of the proposed dwelling, arguing that it complied with all the policy requirements for a new dwelling when an existing dwelling is not retained. Mr Stewart accepted the assessment, except for the policy requirement of consistent scale. However, for all the reasons above, the Tribunal has found that the proposal complies with the scale of the streetscape and immediate locality. 118 The Tribunal finds that the proposal complies with the Precinct Policy.
Conditions 119 As required by the Tribunal, the City submitted draft without prejudice conditions. 120 The applicant objected to only one condition, a condition requiring archival records to be submitted prior to demolition. After some discussion between the experts, the City agreed that, because the existing house was a 1960s dwelling that was inconsistent with the character of the Precinct, 'the condition could fall away'. The Tribunal agrees with both experts.
Conclusion 121 This application demonstrates the difficulty of meeting the competing needs of a complex planning framework. The proposal is for a modest family dwelling on a small site of 353 m2. The site was further constrained by the need, on one hand, to maintain a consistent front setback to meet streetscape requirements and, on the other hand, to meet the requirements for car parking to be accessed from the right of way at the rear of the site. Given the applicant's reasonable accommodation (Page 28)
needs, it was inevitable that some of the dwelling would need to be accommodated on an upper level. 122 At this point, the applicant had to confront the underlying principles of the Scheme that assume single storey development and facilitates limited second storey development subject to stringent requirements. The Council's precinct and streetscape policies provide appropriate guidelines to assist applicants to understand how Council applies the limited discretion. A critical requirement is the protection of streetscape, and an underlying principle that dwellings should appear single storey from the street. To achieve this, the Streetscape Policy indicates that any second storey be limited to 15% of the site area and that it be located in the middle third of the site. 123 The applicant proposed an upper floor level of 20.6%, with most of it located in the front third of the site area. It would be easy enough to modify the design and locate the development in the middle third, and the excess area would be barely perceptible from the street or adjoining properties. In such a situation, it is possible the City may have approved the application. 124 However, there is a fundamental problem with locating the upper level in the middle third. It is clear, from the evidence, that the applicant consulted with the southern neighbour, and there is very strong support from this neighbour for the current proposal. The upper level development, in its current location, partially aligns with the neighbour's boundary wall. Any movement backwards of the upper level will have a significant adverse impact on this neighbour's solar access and sunlight. 125 The City argued that cl 42(1)(a) of TPS 4 requires single storey residential development, and that, under cl 42 (1)(b) of TPS 4, the Council may permit second storeys, subject to no adverse impact on adjoining residential sites or the general amenity of the locality. The primary argument of the City was that the two storey element of the proposal did not comply with the requirements to meet general amenity standards of the locality, as fully explained in the streetscape and precinct policies. 126 The Tribunal found in favour of the evidence from the applicant's experts, where one of the compelling arguments was that, whilst Finlayson Street is attractive, in the sense it is a tree lined street with green verges and has an intimate character which contributes to the essential Subiaco character, in architectural terms, there is no coherent (Page 29)
form. Approximately 50% of the surrounding development contains two storey elements clearly visible from the street. 127 The Tribunal also agreed with the applicant's expert's detailed assessment of the proposal that it met the objective for the residential zone that required compatibility of the proposal with the established streetscape, taking into account setbacks, roof pitches, materials, design and landscaping. 128 In the circumstances of this particular proposal and in the context of the streetscape, the Tribunal found not only that the upper floor was acceptable in the proposed location, but it also found that the area exceeding 15% was barely perceptible from the street or the neighbours' properties and was acceptable. 129 The Tribunal did not agree with the City's submission that the proposal was non-complying and failed cl 42A of TPS 4. The Tribunal found that cl 42A of TPS 4 only applied to proposals that exceed the discretionary limits set in cl 42(1)(b) of TPS 4. The proposal was less than the limits permitted by cl 42(1)(b), and therefore, cl 42A of TPS 4 did not apply. 130 In this case, the Tribunal considered that the City had inflexibly applied the Streetscape Policy. The Tribunal found that, due to the particular characteristics of Finlayson Street and the relationship between the applicant's proposed upper level and the southern neighbour's dwelling, the proposal complied with the requirements of the Streetscape Policy. For similar reasons, the Tribunal found the proposal complied with the Precinct Policy. 131 Having regard to the above findings, the Tribunal concluded that, in accordance with cl 42(1)(b) of TPS 4, the proposal's increased height did not have an adverse impact on the adjoining residential sites or the general amenity of the locality. 132 The Tribunal found that the proposal complied with all relevant TPS 4 requirements and that discretion should be used to approve the demolition of the existing dwelling and the development of the proposed new dwelling. 133 For all the above reasons, the Tribunal finds that the review has been successful. (Page 30)
Orders 134 The Tribunal makes the following orders: 1. The application for review is allowed. 2. The decision of the respondent made on 12 March 2013 to refuse to grant development approval for a new residence at No 11 (Lot 109) Finlayson Street, Subiaco is set aside, and a decision is substituted that planning approval is granted for the demolition of the existing dwelling and the construction of a new two storey single house at No 11 (Lot 109) Finlayson Street, Subiaco, subject to the following conditions: a) The development is to be carried out in accordance with the plans and drawings dated 12 December 2012 (and with the revisions dated February 2013), included with the application for development approval. b) The lot is to be stabilised to reduce the likelihood of dust generation as soon as practicable after completion of demolition. c) Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard. d) Prior to occupation, brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development. e) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved. (Page 31)
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