Hughan and Town of Vincent [2006] WASAT 48 (24 February 2006)

Hughan and Town of Vincent [2006] WASAT 48 (24 February 2006) - WASAT 2006 case summary — Zoe

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28 The respondent argued that the overall combined effect of the non-complying elements of the proposal would result in a development that would adversely impact on the amenity of the adjoining neighbours and that the resultant diminution of amenity would be contrary to the orderly and proper planning for the locality and the objectives of TPS 1. Mr Meggitt argued that the failure of the design of the proposal to meet the requirements of the Codes resulted in a building that was excessive in scale and bulk which negatively impacted on the amenity and privacy of the adjoining properties. He further contended that the configuration of the development failed to respond to the design and character of the existing dwelling, as well as, the streetscape and that the subsequent subdivision of the subject land would result in the creation of a de facto battleaxe lot. Mr Meggitt tried to present further argument relating to the subdivision of land but was reminded that the application for review before the Tribunal was for a development application for the construction of a grouped dwelling and that argument relating to the creation of a "common property lot" was not pertinent to this application.

29 The crux of the respondent's argument was that the proposed development failed to meet the criteria for permitting the use of the higher density code as set out in Policy 3.3.18, as the design of the proposed development failed to ameliorate the adverse impacts of the proposal on the adjoining properties, resulted in the removal of a tree listed in the Town's "Trees of Significance Inventory Database - Reference" and did not respond to the design and character of the existing dwelling on the lot and the streetscape in general.

30 The applicant contended that the proposed development met the particular criteria listed in Policy 3.3.18 and that the departures sought in relation to the Acceptable Development provisions of the Codes did not result in any undue impacts on the amenity of the adjoining properties. Furthermore, the applicant asserted that the scale and bulk of the building was of a form that might reasonably be expected in an area coded R30/40. In response to the removal of the tree, the applicant reiterated the comments put forward by the planning officers in their report to Council on 12 July 2005, which stated "there is a Eucalyptus species tree on site which is on the Town's Trees of Significance Inventory Database-Reference, but the Town's Parks Service have advised that the trees is not significant enough to warrant retention". Mr Hughan gave evidence suggesting that the tree had only been planted about eight years ago by the tenant. It was further agreed, during the site visit, that the subject tree was not of the "Eucalyptus species" as described in the respondent's inventory.

31 The respondent did not produce any evidence attempting to substantiate the inclusion of the subject tree in their inventory. The Tribunal acknowledges that the tree is listed in the Town's "Trees of Significance Inventory Database - Reference", however, the evidence before the Tribunal raises significant doubt about the efficacy of the inventory and as no other evidence has been led to challenge this evidence, the Tribunal accepts the comments made by the respondent's Park Services Division.

32 The non-compliant matters were individually addressed by the parties and are as follows:

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36 The diagram illustrates two examples, the right side which relates to separate walls with major openings and the left side, separate walls without major openings. Mr Meggitt interpreted "A" as described in dot point 1 of the text as applying to both examples. On his interpretation, portion of wall "D" is required to be greater than 4.0 metres in length and set back 3.0 metre before portions of walls "E" and "F" can be treated as separate walls.

37 In considering both the text and the diagram in conjunction, it would appear that there is some potential for confusions as the letter "A" has been denoted on both sides of the diagram. However, on the construction of the text, it is clear the "A" is only applicable to the circumstances demonstrated in the right side as "B" is not reference in the example shown on the left side. This is further evident by the inclusion of dot point three which determines the setback of "D". The Tribunal agrees with the interpretation of Mr Davey and, as such, the Tribunal finds that the setbacks as shown in the proposed development for the upper floor west and the upper floor east (bedroom 1 and bedroom 3) are compliant with the Acceptable Development provisions relating to "Building Set back from the Boundary".

38 In regard to the departures relating to "Buildings on Boundary", Mr Meggitt contended that the design of the proposed development entailed the building been built to three boundaries. He advanced the argument that the departures sought further illustrated that the building was of a bulk that was unsuitable for the site. Mr Meggitt acknowledged that the Codes provided for buildings to be built up to one side boundary but asserted that the bulk of the building would negatively impact on the amenity of the adjoining properties thereby failing to satisfying the performance criteria as set out in cl 3.3.1 P2 of the Codes. The adverse impacts identified by Mr Meggitt included shading of outdoor areas, a reduction in the flow of breezes between the properties, a heighten sense of enclosure and the loss of established landscaping along the boundary of No 34 Paddington Street. Mr Meggitt did not produce any material evidence to substantiate these claims.

39 Mr Richard Sandell, a resident of No 34 Paddington Street, was called by the respondent to give evidence regarding the perceived impacts of the proposed development on the adjoining properties. In relation to boundary setbacks he raised concerns relating to the scale and bulk of the building. He considered that the design of the building in respect of its size, scale, lack of acceptable boundary setbacks and boundary walls on three boundaries, would have significant adverse impact of the amenity of adjoining properties. Particular concerns raised by Mr Sandell included the visual impact of the proposed dwelling as view from the adjoining properties, the destruction of mature gardens and the removal of a significant tree, loss of sunlight and breezes, the reduction of development options available to affected neighbours and safety hazards created during construction. Mr Sandell produced a number of computer generated images to visually demonstrate the imposing nature of the proposed two-storey dwelling as viewed from the adjoining properties and its affect on existing vegetation.

40 In response, the applicant maintained, through the evidence of Mr Davey, that the parapet wall on the eastern boundary of the subject land was fully compliant with the Acceptable Development provisions of the Codes as cl 3.3.2 A2 iii permits in areas coded R30 and higher "walls not higher than 3.5 metres with an average of 3 metres for 2/3 the length of the balance of the boundary behind the front setback to one side boundary". Mr Davey asserted that the parapet wall would not have any undue impact on the adjoining property as the height of the wall equated to the same height as the existing boundary fence (including lattice). However, in order to preserve the existing vegetation along the common boundary, which was a significant concern of the residents of No 34 Paddington Street, the applicant indicated a preparedness to off set the building from the boundary.

41 Mr Webb, an experienced town planning consultant representing the applicant and Mr Davey asserted that the walls referred to by Mr Meggitt as boundary wall on the western and northern boundaries of the subject land were masonry walls (fences) of up to and no more than 1.8 metres in height. Mr Davey described the western wall as a screen wall, separate from the columns associated with the carport. He said that the wall had been included purely for aesthetics reasons and could be substituted by fencing of an alternative material.

42 The Tribunal accepts that the eastern boundary wall when considered independently is compliant with subclause iii of cl 3.3.2 A2 of the Codes. Furthermore, the Tribunal accepts the applicant's argument that the northern and western brick walls are no more than dividing fences and therefore not boundary walls. However, these findings do not overcome the issue of the carport columns which support the upper floor of the building and are positioned "up to the boundary" (see cl 3.3.2 i of the Codes). The columns form part of the vertical external face of the building and therefore, by definition are considered to be a wall on the western boundary. The development when considered in its entirety does not comply with subclause iii of cl 3.3.2 A2 of the Codes and therefore must be assessed against the performance criteria specified in cl 3.3.2 P2, which states:

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46 Mr Meggitt asserted that the privacy setback to bedroom 2 window was non-compliant with cl 3.8.1 A1 of the Codes, as the setback to the window was required to be 4.5 metres from the eastern boundary and only 3.5 metres had been provided. Mr Meggitt asserted that the proposed development failed to satisfy the performance criteria as specified in cl 3.8.1 P1 as direct overlooking occurred between active habitable spaces of the development site and the outdoor living areas of adjoining properties.

47 Mr Sandell contended that the main outdoor living area of the adjoining property at No 19 Clieveden Street would be overlooked from both bedroom 2 and bedroom 3 windows. Mr Sandell did not support the use of screening to restrict overlooking as he was concerned that the screening could be removed at a later date or by a new owner.

48 Mr Davey explained that the screen as shown on the plans would obscure the view from both bedroom 2 and bedroom 3. He conceded that the screening did not fully obscure overlooking within the cone of vision (as determined by the Codes) as there was about one square metre of the north-western corner of the adjoining property that lay inside the cone of vision that was not obscured by the screen. He considered that this minor overlooking would have minimal impact on the amenity of the adjoining property and that the screening provided satisfied the performance criteria as specified in cl 3.8.1 P1, particularly as the area affect was the rear yard of the adjoining property. Mr Davey, indicated that if this issue was of concern the solution was to simply extend the screen. As well, during the site viewing it was pointed out that an existing palm tree on the adjoining property would assist in screening the window.

49 Except for the window in bedroom 2, the proposed development complies with the Acceptable Development provisions relating to visual privacy. The proposed screen does not completely restrict views within the cone of vision and therefore is required to be assessed against the performance criteria specified in cl 3.8.1 P1. The aim of the provision is to avoid direct overlooking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas with adjoining properties taking account of the following:

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55 Mr Meggitt asserted that the proposed development would detract from the appearance of the streetscape as the outdoor living area and the double carport for the existing dwelling are located within the front setback area. Mr Meggitt submitted photographs of a number of dwellings in Paddington Street to illustrate that Paddington Street is characterised by "open front setback areas with low front fences and well landscaped gardens". He further asserted that generally car parking structures were located at the side or rear of the properties. He contended that the inclusion of such elements in the Paddington Street streetscape would diminish the character of the street, citing the existing developments at Nos 3 and 5 Paddington Street as examples of infill development that have detracted from the streetscape.

56 Mr Webb also produced photographs to demonstrate that double carports are a common element within the streetscape of Paddington Street, particularly within the immediate vicinity of the subject land. Mr Webb focused on the properties on either side of the subject land where car parking is located within the front setback area. He asserted that the proposed development was entirely consistent with both the immediate properties and many other examples in Paddington Street.

57 There was no evidence led by the respondent suggesting that the double carport was non-compliant with the Acceptable Development provisions of the Codes or that the location of the outdoor living area did not satisfy the performance criteria as specified under cl 3.4.2 P2 of the Codes. It would appear that the respondent relies on Policy 3.3.18 as providing a measure of orderly and proper planning for the area.

58 In order to gain a full appreciation of the streetscape of Paddington Street, a view was held on 17 November 2005. The parties agreed that the observations were to be treated as evidence before the Tribunal. The view confirmed that the character of Paddington Street is defined by the original dwellings, which generally establish an identifiable street setback pattern. The area between the dwelling and the street is characteristically open with low fences delineating the private and public interface. There are, however, a number of carport structures, paved areas and high screen walls located within the front setback area, particularly in the immediate vicinity of the subject land. The intrusion of a double carport in the front setback area will, to some extent, detract from the streetscape, as the visual relationship between the dwelling and the public realm will be interrupted by the introduction of a structure, which will partially obscure the view of the dwelling. However, the density of the area contemplates infill development and the proposed development accords with the configuration envisaged by Policy 3.3.18, that being "infill development to the rear of the lot". The design of the proposed carport reflects the details of the original dwelling and responds to the need to retain some interconnectivity with the street by ensuring that the carport is permeable on all sides, and through the provision of a relatively low front fence. The Tribunal finds that the inclusion of a double carport and outdoor living area for the existing dwelling within the front setback area will not significantly detract from the streetscape of Paddington Street to warrant refusal of the application.

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61 The applicant raised the following issues in respect to the draft conditions:

62 Condition (a) - the applicant is concerned that it is too open to a subjective and unreasonable interpretation and should incorporate the concept of reasonableness. The Tribunal does not consider this condition to be unreasonable as it is intended to ensure that external fixtures conform with the objective of Element 10 of the Codes.

63 Condition (b) - the applicant contended that the condition was neither reasonable nor appropriate. The need for this condition is resolved by the applicant's preparedness to set back the parapet wall from the eastern boundary and by the fact that the walls on the northern and western boundaries are dividing fences. An appropriate condition will be imposed by the Tribunal.

64 Condition (c) - the applicant did not oppose the spirit of the condition but expressed concern about requiring, "Revised Plans [being] submitted and Approved..." as the approval of plans is beyond the ability or power of the applicant to achieve. This concern can be easily overcome by requiring the Building Licence plans to reflect the requirements as specified. This approach would apply for condition (d) as well.

65 Condition (d) - the applicant initially disagreed with the inclusion of sub-condition 1 but later conceded to this requirements, if necessary. The Tribunal will require its inclusion as a part of the condition.

66 Condition (e) - the applicant generally agreed with this condition except for the requirement to be "one hundred (100) per cent open" as this necessarily excludes the supporting columns together with the gates and panels which the respondent advises, are permitted. This is a valid concern and as such the condition should be modified.

67 Condition (f) - the applicant objects to the part of the condition requiring the detailed landscape plan to be approved by the respondent prior to the issue of a Building Licence, and for the applicant to guarantee that the plants will continue to be maintained thereafter. The Tribunal considers this condition to be lawful and acceptable as it relates to an incidental aspect of the development.

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Judgment (103 paragraphs)

Hughan and Town of Vincent [2006] WASAT 48 (24 February 2006)

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