Ben-Pelech and Anor v Town of Cambridge [2004] WATPAT 49

Mr M Hardy (instructed by Hardy Bowen) appeared for the Appellant

Mr C Slarke (instructed by McLeods) appeared for the Respondent

1. The Appellants are the owners of Lot 389 (No.16) Challenger Parade, City Beach (the "subject property"). On 17 June 2003 the Appellant made application to the Respondent for approval to construct a three storey residence on the subject property.

2. These plans underwent some changes and modifications but ultimately they were addressed by the Council of the Respondent at its meeting on 28 October 2003, at which meeting the Council of the Respondent resolved to refuse the application and provided the following reasons:

"The proposal does not comply with the acceptable development requirements of the Residential Design Codes of Western Australia Part 3.7 element 7 - Building Height nor, the Town of Cambridge Residential Design Guidelines section 7 - Building Height and Bulk, as these provisions relate to wall height, nor does the proposal satisfy the performance criteria as set down in these documents.

The proposal if approved would result in an undesirable precedent for other single house applications seeking increased height to achieve ocean views.

The development will have an adverse impact on the amenity of the street scape and adjoining properties by virtue of its excessive height."

3. The present appeal is brought from that refusal. The subject property from its present location has ocean views. The undisguised aim of the Appellant's development application was to take advantage of these views upon the construction of a new residence.

4. The Appellants engaged Mr Gavin Lee. Mr Lee is an architect who was responsible for the preparation of the initial design. He effected changes to the design in the course of the consultation process involving the Respondent. In approaching the design of the proposed residence, Mr Lee addressed a number of specific concerns including increased set backs being more than otherwise required under the Residential Design Codes, a change in the attitude of the proposed residence so it effectively achieves an east-west orientation and using a skillion roof design.

5. In the case of the last item Mr Lee described it this way:

"There are numerous interpretations and derivations of the term 'skillion' roof but basically a skillion roof is a mono-sloped roof without a ridge or peak, providing the main roof or part of a roof. In this particular instance, I decided two connecting skillion roofs would provide a more interesting street appearance as well as complying with the height restriction as contained between section 7.3.2 of the Town of Cambridge Residential Design Guidelines."

6. The height of the proposed residence is in part a result of the instructions from the Appellants to Mr Lee to achieve a degree of spaciousness which involves ceilings being a minimum of 2700mm. He also points out that there were consultations involving Mr Peter Webb, an experienced planner retained by the Appellants and planners effectively acting on behalf of the owner of the adjoining property, No.14 Challenger Parade. This led to increasing the front set back from 7.5 to 9 metres in order to maintain a northerly aspect.

7. Further direct negotiations also took place with the owners of No.18 Challenger Parade to achieve a similar setback. The sketch of the proposed development also indicates that because of the angle on which the residence is proposed to be constructed to take advantage of the prevailing breezes, its attitude to the street in terms of bulk and scale is mollified.

8. As contemplated by Part 2.6.2 of the Residential Design Codes the Respondent has in fact prepared a local planning policy to deal with relevant issues including streetscape and building height.

9. The relevant portion of the Residential Design Guidelines (RDG) is headed "Building Height and Bulk". The broad aim is to "avoid excessive disruptions in building scale". There then follow what are described as "guidance notes". Finally in clause 7.3 there are what are described as "compliance standards". This materially provides as follows:

"Development which meets these standards, in addition to the requirements of the R-Codes (now the Residential Design Codes) will be approved by the Council. Where no standard is prescribed, the requirements of the R-Codes shall prevail."

7.3.2 New development shall not exceed the following height limits, measured vertically above the "natural level" immediately below the relevant point on the wall or roof.

(a)

External walls, to the top of the eaves of the wall line, parapet or flat roof, whichever is the highest, except gable walls or skillion walls - 6.5 metres;

(b)

Upper surface of roofs, excluding hipped roofs, at their highest point - 10 metres; or

(c)

Hipped roofs - 11 metres."

10. The design with which the Respondent was concerned at its meeting on 28 October 2003, and the matter currently before me, is one which involves, as Mr Lee has indicated, two interconnecting skillion roofs and a design which has a highest point of the roof of 10 metres.

11. As indicated above, the Respondent refused the development application on the basis that it treated the matter as one where the upper height limit was to be 6.5 metres.

12. The Respondent comes to this conclusion on the basis that it contends that what is involved is not a skillion roof or skillion wall at all and that as a result the matter is governed by clause 7.3.2(a) RDG.

13. The basis of such a conclusion is found in the evidence by Mr Justin Page. Mr Page is a planning officer employed by the Respondent. He is not an architect and claims no architectural experience or qualification. The Respondent relies upon an extract from a book or document described as "Glossary of Building Terms 4th edition - fully revised". This is said to be "An illustrated compendium of building terms and definition used in Australia and New Zealand". It is jointly published by the National Committee on Rationalised Building ("NCRB"), Standards Australia and Suppliers Index Pty Ltd. The only portion of this document produced as part of the hearing was page 355 headed "Roof Types". It shows in pictorial format examples of a number of roof types including skillion roof (single pitched roof) and pitched roof (gable roof).

14. In addition there appeared to be a variety of other roofs which were either derivations of those two or types which are significantly different for example a flat roof. From this document there also appears a pictorial description of what is described as a double pitched roof (butterfly roof).

15. Mr Lee's evidence was that the design prepared by him, as architect for the Appellants, was in fact two interconnecting skillion roofs.

16. No countervailing architectural or building evidence was led by the Respondent. In the circumstances, I am prepared to accept, and do in fact, accept the evidence of Mr Lee as to the description of the design proposed by him. It also seems to me in any event that a butterfly roof so called appears to be capable of falling within the description offered by Mr Lee in relation to a skillion roof and fits the design parameters of two interconnecting skillion roofs.

17. The next issue raised was the use of the word "walls" in relation to skillion as opposed to skillion roof or roofs.

18. Mr Page gave evidence that his understanding of a skillion wall was that it was a wall supporting the skillion roof but would not be in this case all four walls.

19. In closing, Mr Slarke, who appeared on behalf of the Respondent, contended that the proper construction of clause 7.3.2(a) in relation to this question must be that such walls must be limited to 6.5 metres as the lowest of the walls in question.

20. It seems to me that such a construction does not emerge from the words used in the clause. Rather it appears that once there is a skillion roof or rather wall supporting such a skillion roof then the matter falls entirely to be determined by clause 7.3.2(b); that is that the upper limit of the structure is to be measured by reference to the roof as opposed to the wall and is limited to 10 metres. Of significance is the fact that there is nothing in clause 7.3.2(a) which addresses itself to the pitch of a gable roof or a skillion roof. Thus, for example, a steeply pitched gable roof may achieve a different impression than one which has a much lower pitch even though in both cases the upper height limit will be 10 metres. The presentment, therefore, in terms of bulk and scale is obviously a function of the pitch of the roof as opposed to the designation or the nomination of a part of the roof in question. That, therefore, explains why there is clause 7.3.2(b) which prescribes an absolute upper limit in relation to such structures whatever the particular pitch chosen by the designer or client.

21. I am satisfied that in those circumstances the proper construction of this provision leads to the result that in relation to these two interconnecting skillion roofs the underlying walls do not require a separate limitation in the way contended by Counsel for the Respondent and that as a result the determinative question in relation to this development is whether the upper surface of the roof exceeds 10 metres.

22. It does not, and the Respondent accepts, that its highest point is 10 metres.

23. It is not a case, therefore, of determining the matter by reference to the performance criteria where there is a departure from the compliance standards. I am satisfied that the proposed structure does comply with the compliance standards.

24. It is apposite to observe, however, that in my view that could never be wholly determinative of the outcome of the development application. It still requires consideration of amenity which involves in this case broad considerations of the impact on adjoining owners of the size and scale of the proposed development.

25. Mr Page suggests that the matter should be addressed by drawing a 400 metre radius from the appeal land. Given that to the west there is no development, the point of such a radius in that direction serves no purpose. The 400 metre radius extending back from Challenger Parade incorporates a variety of housing.

26. Mr Page's view was that measured in that way the form of housing is predominantly single storey with most houses having been developed some years ago.

27. Mr Lee and Mr Webb, who both gave evidence on behalf of the Appellant, sought to address the issue by express reference to Challenger Parade rather than incorporating land which lay further to the east.

28. There is much to be said for such an approach. There is no doubt that the position of Challenger Parade in relation to the Indian Ocean and the availability of views to the residents of that street have affected the degree of development in that street which is not necessarily replicated in areas further to the east.

29. The series of photographs taken by Mr Webb of houses in Challenger Parade adjacent to the subject property demonstrates that the preponderance of properties are two or more storeys. However, such development has been effected more recently than the original development within the area which took place between 30 and 35 years ago.

30. The Respondent approached the matter by identifying that apart from the property at No.20 Challenger Parade, any property developed in Challenger Parade which presents as a three storey residence does so as a result of cutting which has occurred in relation to each of those properties.

31. The Respondent's contention is that the proposed development on No.16 Challenger Parade is to be effected without any cut so that it will present in a much higher mode than adjoining houses.

32. In part that is because the subject property sits at a high point on Challenger Parade. The fact, however, is that the consequence falls to be determined by reference first to relevant planning considerations and in particular the Respondent's RDG (with which I have already dealt) and then the broad based question of amenity.

33. Of significance is the fact that the neighbours on either side of the subject property have had their interests accommodated by increased set backs affected by the Appellant.

34. There is, however, concern expressed by the owner of the property immediately behind the subject property in Branksome Gardens. This concern is effectively reflected in a photograph taken by Mr Page from the roof of the garage of the property behind the subject property on which Mr Page has superimposed what he understands to be the outline of the development proposed.

35. There are a number of matters which emerge and are clarified by such an exercise.

36. It should be emphasised at the outset that Mr Page professes no architectural qualifications or experience and qualifies the presentment of the photograph with the outline superimposed as a result.

37. Nevertheless, it demonstrates that if the building were to be erected in the manner depicted by Mr Page, then the openness of the proposed structure would not unduly affect the amenity of the owner of the property behind the subject property.

38. It is necessary for the owner of the property behind to build up in order to obtain the ocean views and if that was done, then Mr Page's exercise demonstrates that the contemplated development would not adversely affect the amenity of that aim of that owner so as to provide a basis in itself to refuse the present application.

39. For those reasons I am satisfied that the appeal should be allowed and the development application should be approved.

40. In accordance with the usual process, the parties have 14 days within which to liaise as to the conditions to be imposed in relation to this grant of development approval.

41. In the event that the parties cannot agree, then the Appellant is at liberty to apply to the Tribunal to determine the conditions which should attach to this approval.