Aydogan and Town of Cambridge & Anor [2006] WASAT 122 (16 May 2006)

Aydogan and Town of Cambridge & Anor [2006] WASAT 122 (16 May 2006) - WASAT 2006 case summary — Zoe

[31]

1 Salih and Kenan Aydogan applied to the State Administrative Tribunal for review of the decision of the Town of Cambridge refusing planning approval for alteration and additions (including an upper level) to the existing dwelling at No 20 Yanagin Crescent, City Beach.

2 The design of the proposed development involved a departure from the acceptable development provisions of the Town of Cambridge Residential Design Guidelines in relation to building height. Approval of the application, therefore, required the exercise of discretion under the "Guidelines".

3 An application was made by Mr Warr, who had an interest in No 18 Yanagin Crescent to intervene in the proceedings primarily in relation to the determination of natural ground level. This issue had previously been addressed by the former Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge [2004] WATPAT 110. Mr Warr asserted that he could demonstrate that the decision of the former Tribunal was in error. The State Administrative Tribunal granted Mr Warr's application to intervene, as the issue sought to be raised would not be heard as the respondent was bound to follow the decision of the former Town Planning Appeal Tribunal.

4 The State Administrative Tribunal was not satisfied that Mr Warr's submission had cast any serious doubt on the correctness of the Town Planning Appeal Tribunal's decision. Accordingly, the State Administrative Tribunal found that for reasons of comity and consistency as expressed at [31] of The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, the decision of the Town Planning Appeal Tribunal on this issue was to be followed.

5 The departure raised planning issues relating to amenity, loss of views of significance and bulk and scale. The State Administrative Tribunal was satisfied that the variation/discretion sought satisfied the relevant performance criteria, did not compromise the objective of the Guidelines, and reflected the type of development envisaged by the Precinct Statement for the City Beach locality.

[46]

20 Clause 17 of TPS 1, which reinforces the objective stated in cl 5, divides the Scheme Area into Precincts. The subject land is located in Precinct "P1 City Beach". This Precinct is further divided into sub-precincts in the Residential Design Guidelines Precinct Statements (Precinct Statements) which identifies the subject land within "Sub Precinct P1A City Beach Proper".

21 The "Zoning Table" contained in TPS 1 classifies the use class "Dwelling (Single)" as a "P" (permitted) use in the "Residential" zone and as such, the proposed development is a permitted use.

22 Under sub-clause 33(1)(e) of TPS 1, planning approval is not required for the erection of a single dwelling house on a lot in a zone where the proposed use is designated as a "P" use, except where otherwise provided by the Scheme. Notwithstanding this provision, any person who wishes Council to exercise discretion under the Residential Design Codes of Western Australia 2002 (Codes) or a planning policy must seek Council's approval for the variation (sub-clause 33(2)). This application requires a departure from the acceptable development provisions of the Town of Cambridge Residential Design Guidelines (June 2005) (Guidelines) in regards to building height.

23 Before granting approval to the requested variations, the Council must satisfy itself, in the first instance, that the discretion requested is one which the Council has the power to approve and secondly, that granting of that discretion would not compromise the objectives of the Codes or planning policy (subclauses 33(2)(a) and 33(2)(b)).

24 Clause 18 of TPS 1 requires the development of land to be in accordance with standards and requirements contained in the Scheme text, planning policy and the Codes, unless otherwise consistent with a planning approval.

25 Pursuant to cl 19 of TPS 1, development of land for residential purposes dealt with by the Codes is to conform to the provisions of those Codes, unless otherwise specified in TPS 1.

26 Subclause 38(3) of TPS 1 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Without limiting the scope of the discretion to determine an application, subclause 38(4) sets out the matters to which regard is to be had in the determination of an application. The relevant matters relating to this application are as follows:

[63]

33 As noted earlier, Mr Warr was given leave to make a submission under s 62 of the TPD Act. His submission effectively sought the deletion of the third level of the proposed dwelling. He contested the decision of the former Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge in regards to the determination of NGL and asserted that the non-compliant portion of the proposed dwelling was significantly greater than that agreed by the applicants and the respondent in these proceedings. He also made submissions on interpretation of the height limits described in the previous Guidelines and those adopted in 2005 and on the impacts of the proposed dwelling on adjoining properties. During the course of the hearing Mr Warr also applied for leave to intervene. His application was granted for the reasons stated above at [11].

34 The application for leave to intervene raised a critical issue in these proceedings, that being, whether the existing levels on the site are those approved in the 1963 plan. The 1963 plan is a site plan showing the levels approved by the respondent in 1963. The outcome of this question affects the levels that should be used in determining NGL and the point from where building height should be measured which in turn affects the level non-compliance with the requirements.

35 This issue had previously been addressed by the former Town Planning Appeals Tribunal in Aydogan & Ors v Town of Cambridge, in proceedings relating to the refusal of the Town of Cambridge to allow additions and alterations to a house on the subject land. For the purpose of this application, the applicants and the respondent followed the decision of the Town Planning Appeal Tribunal in respect to this issue, agreeing to proceed on the basis that NGL is to be taken to be the existing ground levels.

36 Mr Warr asserted that he could "prove beyond reasonable doubt" that the existing levels on site had not been approved by the respondent and that the existing levels were built higher than those approved by the respondent. He contended that this evidence would show that the decision of the previous Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge was clearly in error.

37 During the hearing of the Aydogan & Ors v Town of Cambridge appeal, the Town Planning Appeal Tribunal heard from Messrs Bowyer and McMullen, both licensed surveyors, in relation to determining NGL. It would seem that the member preferred Mr McMullen's evidence, but given the level of uncertainty in converting the 1963 contours to AHD, the unreliability of the 1963 and 1967 contour plans and evidence that various earthworks had occurred as result of the construction of the house which brought into question the reliability of using existing levels, the Town Planning Appeal Tribunal found:

[73]

45 It was common ground that the maximum allowable building height for a dwelling with a flat roof in this locality is 7.5 metres above the NGL. The Tribunal accepts this position. The applicants and the respondent also agreed on the portion of the dwelling that departed from the acceptable development provisions of the Guidelines in respect to building height (non-compliant portion). This area was identified as a portion of the building on the third level situated over the existing garage and stairwell. Attachment 2 of Mr Allerding's supplementary witness statement illustrates the parts of the northern and western elevations which depart from the acceptable development provision (see Annexures 1 and 2 to these reasons). Annexure 1, referred to as the "front view (west)", shows a section that is 1.5 metres in height by 13.5 meters in length. Annexure 2, referred as "left side view (north)" indicates that the building is over height for approximately 11.3 metres of its length. It highlights the whole length of the wall and not just the part above 7.5 metres.

46 The respondent submitted that the Guidelines provide a proper measure of orderly and proper planning and the requirement to follow the natural or approved terrain, and limit building height aims at minimise impacts on neighbours. The respondent contended that the proposed development exceeded the prescribed height limits by a significant amount over a large part of the building and that the extent of non-compliance with the guidelines was not consistent with orderly and proper planning.

47 The applicants argued that a significant proportion of the proposed dwelling was compliant with the acceptable development provisions of the Codes and the Guidelines, and that the area identified as non-compliant was quite insignificant in proportion to the overall development.

48 The Tribunal is not so concerned as to the mathematical calculation of the total area of the non-compliant portion in relation to the overall development, but rather with whether the departure satisfies the performance criteria set out in the Guidelines and in doing so, does not compromise the objective of the planning policy.

49 It was common ground between the applicants and the respondent that the performance criteria at issue was the fourth dot point, which reads:

[90]

66 In essence, the application before the Tribunal, pursuant to cl 33(2) of TPS 1, is for approval for variation/departure from the acceptable development provisions of the Guidelines in respect to building height. The Tribunal may approve the variation with or without conditions, or may refuse to approve the variation. However, if the Tribunal is minded to approve the variation/discretion, it is obliged to satisfy itself that the discretion requested is one which it has the power to approve and the granting of that discretion would not compromise the objectives of the Codes or Planning Policy, in this case, being the Guidelines.

67 The relevant performance criteria require, among other things, consideration of amenity impacts on the adjoining properties. One of the arguments raised by both the owners of the adjoining properties and the respondent was that the amenity impacts of the application under review would not be substantially different to what was refused by the Town Planning Appeal Tribunal. This may well be the case, however, there has been a significant change in the acceptable building height requirements of the Guidelines for this locality, which as identified by the Town Planning Appeal Tribunal, is "a proper measure of orderly and proper planning in this area". Therefore, the extent that the proposed dwelling exceeds that "proper measure" is significantly reduced from what was considered by the Town Planning Appeal Tribunal. The compliant portion of the dwelling reflects orderly planning as it accords with proper planning for this locality and conforms with reasonable expectations. Save for the non-compliant portion, the development would be approved by a building licence.

68 The amenity impacts of the non-compliant portion of the building needs to be assessed as additional to what can reasonably be expected as acceptable development. Therefore, it is necessary to assess the cumulative impacts of the compliant and non-compliant portions of the dwelling on the adjoining properties. The evidence identified building bulk and loss of views as the most significant issues affecting the amenity of the adjoining properties. Although there was no technical analysis of sight lines, evidence was given by the two planning experts to the effect that the reduced amenity impact for No 5 and No 7 Tamala Road, and No 18 Yanagin Crescent by way of loss of views of significance would not result from the compliant portion of the proposed dwelling. Further, that the impacts of the additional non-compliant portion of the dwelling would have minimal, if no impact on No 18 Yanagin Crescent or No 7 Tamala Road and would only affect the view of No 5 Tamala Road to an open space area, which was not considered to be a view of significance. In respect to No 9 Tamala Road, the evidence showed that the bulk of the building affecting this property related to the compliant portion of the dwelling. On this evidence, the Tribunal concludes that the part of the proposal in relation to which variation/discretion from the acceptable development provision is sought will not result in any significant additional loss of views from the adjoining properties.

69 The proposed dwelling is likely to have its greatest impact on the outdoor areas of No 22 Yanagin Crescent. It was accepted that the impact of the proposed dwelling on No 22 Yanagin Crescent was largely a question of bulk. The areas outside the dwelling identified as likely to be affected by the non-compliant portion included the garage and carport area, which is situated along the common boundary with the subject land, and the outdoor living area located approximately 15 to 17 metres from the non-compliant wall. The non-compliant portion of the dwelling at it shortest distance is proposed to be setback approximately 5.0 metres from the common boundary adjacent to non-habitable areas. The Tribunal is of the view that the impact on this area is not so unreasonable to warrant refusal of the application. In respect to the outdoor living area at the rear of No 22 Yanagin Crescent, the applicants produced some recent photographs of development occurring onsite involving the erection of a patio (refer to Exhibit 15). The Tribunal considers that this structure will assist in ameliorating the impacts of the proposed dwelling on the outdoor living area of the adjoining property. Therefore, the Tribunal concludes that visual impact of the part of the proposal in relation to which variation/discretion is sought and the proposed dwelling as a whole on the outdoor living area of No 22 Yanagin Crescent is also not so unreasonable to warrant refusal of the application.

70 For the reasons stated above, the Tribunal is satisfied that the variation/discretion sought satisfies relevant performance criteria, does not compromise the objectives of the Guidelines, and is reflect of the type of development envisaged by the Precinct Statement for this locality.

71 As to the imposition of conditions, the respondent informed the Tribunal that it did not seek to impose any conditions on the application if approved.

At a glance

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Judgment (92 paragraphs)

Aydogan and Town of Cambridge & Anor [2006] WASAT 122 (16 May 2006)

AYDOGAN and TOWN OF CAMBRIDGE & ANOR [2006] WASAT 122 (16 May 2006)

Legislation Cited (2)