Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 (7 October 2005)

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4 These proceedings concern an application for review under s 8A of the Town Planning and Development Act 1928 (WA) (the Act) of the City of South Perth's refusal to grant planning approval to the erection of a four level residential flat building at Lots 33, 42 and 43 (Nos 60 62) Canning Highway, Kensington (site). The site has frontages to both Canning Highway and Hovia Terrace.

5 The site has an area of 2027 square metres, of which the western 669 square metres comprises an 18 metre wide strip reserved under the Metropolitan Region Scheme (MRS) for widening of Canning Highway. The site has frontages of 37.22 metres to Canning Highway (northwest), 58.74 metres to Hovia Terrace (northeast), 36.62 metres to a 4 metre wide laneway which runs from Hovia Terrace to Banksia Terrace (southeast), and 52.02 metres to an adjoining property which fronts Canning Highway (southwest). Although the laneway adjoining the site is sealed and drained, it was referred to in the evidence as a "rightofway" and is zoned "Residential", rather than "Local Roads", under the City of South Perth Town Planning Scheme No 6 (TPS 6). The area of the site which falls outside the MRS reservation is 1357 square metres.

6 The part of the site which excludes the MRS reservation falls approximately 2.29 metres from west (18.11 metres AHD) to east adjacent to the intersection of the Hovia Terrace and rightofway frontages (15.82 metres AHD). Presently erected on the site in the MRS reservation area is a single storey commercial building at the corner of Canning Highway and Hovia Terrace and a single storey residential building to its south-west. Most of the site comprises large open yards with a number of trees. One of these trees, a Eucalyptus grandis, was described by Mr John Murray, the City's streetscapes supervisor, as "well worth retaining if possible", although it has not been identified as being of Citywide significance.

7 The planning application proposes the retention of the commercial building, the demolition of the residential building and its replacement with a 14 bay car park accessed via a new driveway from Hovia Terrace over part of the unreserved portion of the site, and the erection of the residential flat building on the unreserved portion of the site. The proposed building would have an L-shape, with the long sides facing Hovia Terrace and Canning Highway. A single driveway is proposed off Hovia Terrace with four visitor spaces in the Hovia Terrace setback off the driveway and 21 at grade, open resident car parking spaces accessed via a remote-controlled garage door. A generally 1.8 2.0 metre high rendered and painted screen wall is proposed to enclose the resident car parking area along the southeastern and southwestern boundaries of the site. Communal open space comprising lawn, pool deck, barbecue area, swimming pool and landscaping is proposed to the west of the building.

8 Thirteen residential units are proposed including six three bedroom multiple dwellings and seven single bedroom dwellings. The overall length of the building would be approximately 27.5 metres to Canning Highway and approximately 30.5 metres to Hovia Terrace. The main structure of the building would be set back approximately 25.0 metres from the Canning Highway frontage and approximately 7.0 metres from the reserved portion of the site, with two corner points and parts of balconies projecting into this setback area.

9 The setback of the main façade of the building to Hovia Terrace would generally range from 5.64 metres to 6.45 metres up to Level 3 and 6.5 metres to 8.0 metres at Level 4. Two metre wide balconies would project into this setback at each of Levels 2 and 3 and a 2.4 metre wide balcony would project at Level 4. The northernmost portion of the building, which would be located adjacent to the corner of Canning Highway and Hovia Terrace following the widening of the highway, has a setback of 3.5 metres to Hovia Terrace up to Level 3 and 6.5 metres at Level 4 with a projecting roof terrace defined by a masonry balustrade, pillars and parapet set back 3.5 metres.

10 The section of the building at the lowest part of the site adjacent to the intersection of Hovia Terrace and the rightofway would have a constant setback of 6.5 metres along a length of 3.4 metres to Hovia Terrace and 1.14 metres along a length of 8.9 metres to the rightofway. A 3.2 3.4 metre high and 3.1 metre wide parapet wall is proposed immediately adjoining the rightofway in the closest part of the building to Hovia Terrace. This corner of the building would rise to approximately 11.5 metres above natural ground level (16.5 metres AHD).

11 In October 2004, the planning application was recommended for refusal by the City's professional staff and was refused by the City. Following amendments made by Canning Mews to the plans after commencement of the proceedings, the City's officers recommended that the City enter into consent orders subject to conditions. In July 2004, the City rejected that recommendation and resolved to continue to defend the refusal of the application.

12 At an early directions hearing, the Tribunal granted leave pursuant to s 62 of the Act to the Kensington Community Association Inc (KCA) to make a written submission in relation to the application. The KCA subsequently provided a written submission to the Tribunal and the parties. The KCA has approximately 120 members most of whom reside in the City's Kensington precinct. The KCA did not oppose multiple dwelling development of the site, but made a number of submissions, including that the development should be modified to 10 units with increased setbacks and landscaping and that the maximum wall height of the building should be determined from a ground point of 16.0 metres AHD.

13 The Tribunal undertook a view of the site and the immediate locality accompanied by the representatives of the parties.

14 For reasons set out below, the Tribunal has determined that the application is required to be refused or warrants refusal for several reasons namely:

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24 Although the Tribunal is not a strategic planning authority, having given careful consideration to the characteristics of the site and the locality in this review, it notes that the coding boundary line selected on the southwestern side of Hovia Terrace reflects poor strategic planning. The juxtaposition of a high density coding with a low density coding is fraught with practical planning difficulties. As the extract from the Codes demonstrates, care needs to be taken, even when selecting a boundary between an area coded R20 and one coded R30. The problem is compounded, in this case, by the selection of a line across the side boundary between two properties developed in a similar, characteristic way. A more sensible strategic planning approach would have been to utilise the rightofway as the line of demarcation, and to impose a medium density coding as a transitional step in the southeastern half of the nonreserved part of the site.

25 Nevertheless, the Tribunal must assess the proposed development on the basis of, and subject to, the development standards imposed in respect of the high density R80 coding. In undertaking its planning assessment of the application, the Tribunal must also give proper regard to the fact that the rightofway and the four properties to the southeast of the site are also coded R80. If a planning discretion arises in relation to the application, the fact that there are properties to the southeast of the site also coded R80 would certainly permit a building of greater height, bulk and scale in the southeastern portion of the site than would be the case if the coding boundary was at the rightofway.

26 Clause 3.3(1) of TPS 6 states that, subject to the provisions of the Scheme, the various purposes for which land may be used are set out in Table 1. Table 1 designates "multiple dwelling" use as a Discretionary Use in the "Highway Commercial" zone and as a Permitted Use in the "Residential" zone. It designates "single bedroom dwelling" use as a Discretionary Use in both zones. Clause 3.3(5) provides that, in respect of a Discretionary Use, "in exercising its discretion as to whether or not planning approval ought to be granted, the Council shall have regard to the Scheme objectives listed in clause 1.6 and to any objectives for the precinct as stated within the relevant Precinct Plan and to such matters referred to in clause 7.5 as Council considers to be relevant in the circumstances".

27 Clause 1.6(1) of TPS 6 states that "the overriding objective of the Scheme is to require and encourage performancebased development in each of the 14 precincts of the City in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each precinct". Clause 1.6(2) sets out the general objectives of the Scheme which include:

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43 As noted earlier, under cl 6.2(1)(b)(i) of TPS 6, subject to subparagraph (ii), the point at ground level from which height is measured for the purposes of the maximum wall height control is "the highest point under the building". As appears to be recognised by subparagraph (ii), this approach to building height control can produce unfortunate results where land falls, particularly in the case of a large building. Mr Stewart considered that the highest point of ground level under the proposed building footprint is 17.72 metres AHD. Mr Bain considered that the highest point is 17.67 metres AHD. Ultimately, nothing turns on this difference. The town planning experts agreed that, measuring building height from either 17.72 metres AHD or 17.67 metres AHD, the building satisfied the maximum 10.5 metre control other than in the case of 400 millimetre high projecting sections located in the central part of the site, including a part of the lift structure. Mr Stewart considered these to be "minor projections" for the purposes of cl 6.2(1)(b)(v)(D) of TPS 6. Mr Bain disagreed.

44 The Tribunal considers that, if building height were determined by reference to 17.72 metres AHD or 17.67 metres AHD, the sections of wall which exceed a height of 10.5 metres are "minor projections" within the meaning and for the purposes of the Scheme. As noted, these sections have a height of only 400 millimetres and, most significantly, are located, as Mr Hardy emphasised, in the central part of the site, 16.0 17.0 metres from the property boundaries and are not apparent at all from the public domain.

45 However, the Tribunal considers that, at least in the southeastern half of the nonreserved part of the site, height should be measured under subparagraph (ii) from the lowest point of ground level below the footprint of the building in that part, namely 16.5 metres AHD. This is because the Tribunal considers that the topography would cause the height of the building in this part of the site to be in conflict with the objectives of Policy P370. In particular, the topography would cause the height of the building to be in conflict with the objectives "to preserve or enhance desired streetscape character, and to promote strong design compatibility between existing and proposed residential buildings" and "to enhance residential amenity standards".

46 Although the Tribunal recognises that the concept of "desired streetscape character" in relation to the site must take into account the reasonable contemplation of the R80 density coding and 10.5 metre building height control which regulate development of the site, the height of the building in its southeastern portion would be, in consequence of topography, inimical to "desired streetscape character" on a site which forms part of what Mr Stewart correctly conceded is a "transition" area from a low density precinct to the Canning Highway precinct. Similarly, although the Tribunal accepts Mr Adam's evidence that "it is fundamentally not possible, and consequently unreasonable to expect, that any development that achieved the desired objective of high density contemplated by the R80 code could be fully compatible in streetscape terms with the single storey, low density housing of Kensington generally", and that the application of the words "strong design compatibility" in this case must include due recognition of the differential density coding, nevertheless, a degree of compatibility is reasonably required. The topography causes the height of the building to conflict with the objective of promoting (a degree of) design compatibility. The problem is exacerbated by the fact that the land falls again from the lowest part of the site under the proposed building footprint (16.5 metres AHD) to the corner of the site at the intersection of Hovia terrace and the rightofway (15.82 metres AHD) and to the footpath (15.74 metres AHD).

47 If the point at ground level from which building height is measured is 16.5 metres AHD, the building height should be approximately 1.2 metres lower than if it was determined by reference to the highest point under the building footprint. The Tribunal does not accept Mr Stewart's evidence that 1.2 metres of building height does not have any adverse impact. The Tribunal prefers the evidence of Mr Bain that, in consequence of the topography, the southeastern part of the building would be incompatible with desired streetscape character and promoting design compatibility. Under crossexamination, Mr Stewart could point to only one element of the proposed building, namely its incorporation of a pitched roof, as creating an element of design compatibility with the other buildings in Hovia Terrace. Mr Adam considered that the architectural style of the development, the detail and degree of articulation, the materials and finishes, and the way it addresses the street "reduce the degree of incompatibility". The elements identified by Mr Stewart and Mr Adam are each referred to as "secondary elements" (rather than "primary elements") contributing to "design compatibility" in Policy P370. The Tribunal does not consider that any of these factors, individually or collectively, result in the satisfaction of objective (a) of Policy P370, giving due regard to the coding of the site and its transitional position, notwithstanding the height.

48 Moreover, the topography would cause the height of the building in its southeastern portion to be in conflict with objective (b) of Policy P370 "to enhance residential amenity standards". The qualities and characteristics which constitute and create residential "amenity" are to be determined objectively. However, in undertaking this objective inquiry, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity. This can include visual amenity.

49 Ms CL Ellison, whose home is three properties to the southeast of the site, emphasised "the fact that all the properties in the street [are] single residential". She considered that "the character of the homes in the street is the whole reason the street has such appeal". In this context, she viewed the proposal as "extremely daunting" and "just too big". Similarly, Cr SD Doherty considered that the characteristics of the building, including its four storey height, are "too unsympathetic to the existing development in Hovia Terrace". Mr Bain described the building as "palpably too large" in its proposed context. The Tribunal accepts this evidence and finds that the characteristic building form and height in Hovia Terrace constitutes significantly to visual amenity and that the topography would cause the height of the building to detrimentally affect that visual amenity.

50 In light of these findings, the Tribunal is required by cl 6.2(1)(b)(ii) of TPS 6 to determine the point at ground level from which height shall be determined. The Tribunal considers that the point should be 16.5 metres AHD in the southeastern half of the building, as that is the lowest point under the footprint in that section.

51 Mr Stewart and Mr Bain agreed that, if building height is measured from 16.5 metres AHD, the building is in breach of the building height limit on its Hovia Terrace façade. In particular, compliance with the 10.5 metre building height determined from 16.5 metres AHD would require the removal of the uppermost approximately 600 millimetres of wall along half of the Hovia Terrace elevation. Given the size of this section and its prominence when viewed from the public domain in Hovia Terrace, the Tribunal does not consider that it is a "minor projection" within the meaning of cl 6.2 of the Scheme. Although the City proposed a draft condition of approval that "no part of the building shall exceed the Building Height Limit of 10.5 metres", that condition was prepared in the expectation that the building height was to be determined by reference to 17.67 metres or 17.72 metres AHD. Moreover, it is unclear on the evidence whether the floortoceiling heights are sufficiently generous to enable the building as proposed to be modified in compliance with the building height limit taken from 16.5 metres AHD in the southeastern half.

52 As the City, and the Tribunal on review, has no discretion under cl 7.8(1) to permit variations from the building height limit control in cl 6.2 of the Scheme, the planning application must be refused in consequence of its height.

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56 It is common ground that, if the Tribunal were to exercise the discretion under par A3 of cl 3.1.3 of the Codes to reduce the minimum site area required for each dwelling by up to onethird, the site could accommodate the six multiple dwellings and seven single bedroom dwellings proposed. Mr Stewart considered that the discretion should be exercised, because three dwellings do not constitute a significant number of additional residences and because a reduction in the number of dwellings "does not result in a corresponding reduction to plot ratio floor area and would still allow for the same (or a greater) amount of accommodation, in terms of the number of bedrooms". Mr Bain emphasised that the proposed single bedroom dwellings had an average floor area in excess of 80 square metres, whereas "it is not uncommon for bedsitters to be 45 square metres to 55 square metres". He considered that the three additional single bedroom dwellings contributed to an excessive bulk and scale of the proposed building.

57 None of the proposed single bedroom dwellings has a plot ratio floor area of 60 square metres or less. The Acceptable Development criterion in cl 4.1.3 is, therefore, not satisfied. However, the Tribunal finds that each of the single bedroom dwellings satisfies the Performance Criteria that it "provide limited accommodation, suitable for one or two persons". In particular, the physical characteristics of each of the single bedroom dwellings as drawn are such that they could not be readily converted into a two bedroom unit.

58 However, the Tribunal does not consider that the discretion under par A3 of cl 3.1.3 should be exercised to permit three additional dwellings in this case. The explanatory text to cl 4.1.3 indicates that the planning rationale for permitting a potential reduction in site area in the case of single bedroom dwellings includes that such dwellings "result in less building bulk". The Tribunal finds that the three additional single bedroom dwellings result in a considerable increase in building bulk. Although, as Mr Stewart observed, a development of 10 multiple dwellings comprising five two bedroom dwellings and five three bedroom dwellings would yield the same number of bedrooms as does the proposal in 13 units, the majority of the floor space of the single bedroom units is not due to the bedroom, but rather is the form of living and dining areas, kitchen, entry and other facilities. Plainly, therefore, a building which would be compliant with the minimum site area per dwelling requirement of the Codes for the R80 coding is likely to present with materially less bulk and scale than the proposal.

59 The Tribunal finds in these reasons below that the section of the building fronting Hovia Terrace would present with excessive and unsympathetic bulk and scale to a low density residential precinct, and would thereby significantly and detrimentally affect the streetscape, visual amenity and character of Hovia Terrace. This section of the building contains four single bedroom dwellings. The elimination of three of these four single bedroom dwellings would materially reduce building bulk to Hovia Terrace. The Tribunal, therefore, considers that the discretion under par A3 of cl 3.1.3 should not be exercised with the result that the application must be refused under cl 4.1(3) of TPS 6 as it is not in conformity with Element 3 and Table 1 to the Codes.

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69 The meaning of cl 2.3.4 is far from clear. On the one hand, it appears to be premised on a requirement for "Codes Approval" which, under cl 2.3.1(3), is required where residential development is exempted from development approval under a town planning scheme. On the other hand, the beneficial and facultative purpose of the clause, to permit flexibility in circumstances of noncompliance, would appear to be equally apposite where approval is required under a town planning scheme which, in turn, requires that a development conform to the provisions of the Codes. The explanatory text, at page 25, certainly contemplates that "all Codes provisions (with the exception of the site area requirements set out in Table 1) are open to the exercise of discretion". On balance, it would appear that discretion is available, although, in light of other findings, the Tribunal does not have to, and does not, come to a final view on this question.

70 On the assumption that a discretion is available under cl 2.3.4 of the Codes, the Tribunal does not consider that it should be exercised so as to permit the application notwithstanding the exceedance of the maximum plot ratio. The proposed building is contrary to objective (c) of the Scheme to "retain the desired streetscape character" and objective (f) to "safeguard and enhance the amenity of residential areas": Codes cl 2.3.4(2)(i). The inconsistency of the proposed building height in the southeastern part of the building with substantially similar objectives of Policy P370 was discussed earlier in these reasons. The proposed building is contrary to objectives (c) and (f) of the Scheme, because the fundamental aspects of its design its height, siting and massing are incompatible with desired streetscape character and visual amenity on a transitional site between a low density precinct and the Canning Highway precinct. Moreover, the orderly and proper planning of the site requires a more transitional built form in its southeastern part: Codes cl 2.3.4(2)(vii).

71 Mr Hardy submitted that the Tribunal should exercise discretion to permit the application, because the deletion of the breaching floor space would not make any obvious difference in the bulk of the building. The Tribunal rejects this submission. In particular, the floor space of Unit 13 which occupies the southeastern half of the Hovia Terrace façade of the building on the fourth level (124.1 square metres) only exceeds the breaching floor space by 12.7 or 16.75 square metres. The elimination of this unit and its replacement with roof form would result not only in compliance with the maximum plot ratio of 1.00, but also with the height control under cl 6.2 of TPS 6 and substantial compliance with the communal open space requirement of the Codes. The deletion of this unit would result in a building of considerably less bulk and scale to Hovia Terrace.

72 As the proposed development is not in conformity with the Codes in relation to plot ratio, it must be refused under cl 4.1(3) of TPS 6.

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 (7 October 2005) - WASAT 2005 case summary — Zoe

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Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 (7 October 2005)

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