Lex Kingdom and City of South Perth [2005] WASAT 11 (2 March 2005)

Lex Kingdom and City of South Perth [2005] WASAT 11 (2 March 2005) - WASAT 2005 case summary — Zoe

[14]

3 Prior to the hearing, the parties agreed that condition 16 should be deleted from the approval, and jointly requested the Tribunal to do so. However, condition 18(b) remained very much in dispute.

4 It is the respondent's case in relation to condition 18(b) that although, given the narrow width of the site, it is appropriate to exercise discretion and accept lesser setbacks than those set out in the 'Acceptable Development' provisions of Element 3 under the Residential Design Codes of Western Australia ("R-Codes"), the setback proposed to Queen Street in the plans of the proposed development is inadequate. The respondent contends that the setback prescribed by condition 18(b) is the minimum required in order to ameliorate the impacts of building bulk on adjoining properties, ensure that the building contributes to the desired streetscape, maintains the character of Queen Street, and achieves an acceptable bulk and scale generally. The Council also contends that although the extent of non-compliance with condition 18(b) disclosed in the plans of the proposed development is not great in purely numerical terms, its impacts are nevertheless significant in terms of building bulk, streetscape and character.

5 It is the applicant's case, in essence, that the imposition of condition 18(b) will not create any or any appreciable difference in impact.

6 In opening, Mr Samec, counsel for the respondent, stated that the Council accepts that the ground floor of the proposed development does not give rise to any adverse impact. The ground floor is not in issue. Rather, Mr Samec stated that that which is in issue, and which gives rise to an unacceptable impact, are the sections of wall of the proposed building and floor space behind (to the north) on the levels above the ground floor which project within 3.0 metres of the Queen Street frontage of the site.

7 Following both parties' openings, I requested the three experts giving evidence in this matter (Mr Rowe, Mr Adam, and Mr Zuideveld), to confer and mark on the plans of the proposed development the extent to which the building will be in breach of condition 18(b). The experts produced a marked-up copy of the floor plan for levels 2, 3 and 4 which shows in green highlighter the agreed position between them as to the extent of non-compliance with condition 18(b). This document became exhibit 1 in the proceedings. It shows that the non-compliance is restricted to four projections which are as follows (west to east along the Queen Street southern façade of the proposed building):

[23]

12 Following its receipt of the development application, the respondent referred it for comment to the Design Advisory Committee ("DAC"). The DAC considered the application at its meeting on 19 July 2004. It had no objections to the design of the proposed building in relation to the general character of South Perth Esplanade and Queen Street. It considered that the proposed boundary walls (to the west and north) were satisfactory in relation to their amenity impact on neighbouring properties. However, it considered that the proposed setback to Queen Street represented a significant variation from the normal prescribed setback and was insufficient in relation to the setback of neighbouring buildings in that street. It recommended "that a setback variation to a minimum of 3 metres would be appropriate". However, as the respondent's Chief Executive Officer stated at Council's meeting of 28 September 2004, the proposal considered by the DAC, and in respect of which it made its recommendation, was the unamended proposal which included the minimum setback of 1.5 metres (rather than 2.1 metres, as presently proposed) to the Queen Street frontage. Although one of the members of the DAC, Mr Zuideveld, gave evidence in the proceedings that the proposed development is not acceptable in terms of setback to Queen Street and that a 3.0 metre setback is required, it does not appear that the respondent referred the amended proposal which is now before the Tribunal to the DAC for comment.

13 The owners of properties adjoining the northern and western boundaries of the site were consulted regarding the proposal. Ultimately, a letter of "no objection" was received by Council from the owner of the property to the north of the site. Three letters of objection were received from the owners of the property to the west of the site.

14 At its meeting on 28 September 2004, the respondent received a detailed planning assessment in relation to the proposed development from a planning officer. The officer recommended that the application be approved, subject to conditions which did not include the condition in question in these proceedings. In particular, the officer considered that the setbacks to Queen Street were acceptable and that the proposal would contribute positively to that streetscape.

15 The respondent resolved to accept the recommendation of its officer, but added the condition which is the subject of dispute in these proceedings.

[24]

16 As noted above, the site is located on the corner of South Perth Esplanade and Queen Street. It has a rectangular shape, a frontage of 15.09 metres to South Perth Esplanade, a frontage of 40.23 metres to Queen Street, and an area of 607 square metres. The experts each consider, and I accept, that South Perth Esplanade is relevantly the primary street frontage of the site and that Queen Street is its secondary frontage.

17 Queen Street runs west to east from Mill Point Road to South Perth Esplanade. It has a length of approximately 120 metres and a road reserve width (property boundary to property boundary) of approximately 22.5 metres. There are five allotments with frontage to Queen Street.

18 No 1 Queen Street is a large rectangular allotment having a frontage of about 60 metres to the north-western part of Queen Street and a frontage of about 45 metres to Mill Point Road, on which is erected an eight-storey apartment tower comprising 16 units. This building is set back a minimum of 5.5 metres from Queen Street and is oriented at a 45-degree angle to the street. The photographs taken from the western end of Queen Street show that the streetscape on its north-western end is dominated by a large retaining structure for a tennis court at the western end of No 1 Queen Street, a tennis court fence above, and, notwithstanding some landscaping within the setback, the substantial residential tower which presents with generally vertical surfaces. It appears that No 1 Queen Street has both pedestrian and vehicular access to Queen Street.

19 Lying between No 1 Queen Street and the site is a property known as No 5, No 7 and No 9Queen Street, on which are erected three attached townhouses 2 - 3 storeys in height. The easternmost townhouse, at No 9, has a setback of approximately 8.6 metres from Queen Street, with a double garage within that setback. The townhouses known as Nos 7 and 5 Queen Street have an additional staggered setback to No 9. This property has a width of 20.78 metres, approximately one-third wider than the site. In contrast to the site, it is oriented towards Queen Street and has a length approximately three times the width of the site.

20 Erected on the site at present is a two-storey dwelling house which is set back to Queen Street 2.0 metres at ground level and 3.0 metres at the second level.

21 On the western end of the southern side of Queen Street, there is a large rectangular property known as No 34 Mill Point Road, on which is erected an eight-storey apartment tower comprising 23 units. This tower has a minimum setback of 6.1 metres to Queen Street, and presents to Queen Street at an angle. The photographs taken from the western end of Queen Street show a high masonry wall along the length of the Queen Street frontage of this property.

22 The final property fronting Queen Street, which is known as No 19 South Perth Esplanade, has, like the site, its primary frontage to South Perth Esplanade and a secondary frontage to Queen Street. However, it is considerably larger than the site. It is both wider and longer than the site. In particular, its length is equivalent to the combined length of the site and width of the property immediately to the west of the site. Erected on No 19 South Perth Esplanade is a one, two and three-storey apartment building comprising a total of seven units. It has a uniform setback of 4.8 metres to the Queen Street frontage.

23 It is apparent from the foregoing description of the immediate locality that each of the five properties which has frontage to Queen Street is quite distinct in its size, orientation and built character. In addition, there is a notable difference between the southern and northern sides of Queen Street, in that the verge along the southern side is double the width of the verge along the northern side and accommodates a number of significant street trees.

24 I have little hesitation in accepting Mr Adam's evidence that "Queen Street does not possess anything remotely resembling a unified, coherent streetscape". Indeed, I accept his evidence that the streetscape of Queen Street is "rather chaotic". Nevertheless, a dominant characteristic of Queen Street is the vista and view of the Swan River and the City of Perth, particularly as one moves in an easterly direction through the street.

[63]

39 Mr Samec submitted that the asterisk which signifies the minimum setback to "Secondary Street" in Table 1 to the R-Codes has the effect that the proposed development must conform to Element 3 in relation to setbacks to Queen Street, and that, without condition 18(b), the development does not conform to Element 3. In the statement by respondent, the Council "concedes that the development has satisfied five of the six requirements to meet [the] Performance Criteria of Element 3, but [submits] that it does not comply with the fifth bullet point, namely that buildings be set back from boundaries to assist in ameliorating the impacts of building bulk on adjoining properties".

40 Mr Hardy, counsel for the applicant, submitted that, on its proper construction, Element 3 of the R-Codes does not apply in relation to setbacks to a secondary street and that it is irrelevant in relation to condition 18(b) which concerns such a setback. He also noted that the six Performance Criteria under Element 3 have not been formulated specifically to address street boundaries and that "to apply them to an issue in relation to setback from a secondary street may produce an outcome which is not within the intention of the R-Codes".

41 I accept Mr Hardy's submission. Plainly, Element 3 is concerned with setbacks other than street setbacks. This is clear from the introductory words of Element 3 which I quoted earlier. It is not any less the case in relation to the Objective and the Acceptable Development criteria of Element 3, simply because, in contrast to the Performance Criteria, these provisions do not expressly refer to the exclusion of street setbacks. As noted above, the scheme of the R-Codes is that "all development must comply with the Performance Criteria", the relevant Performance Criteria "must be satisfied if the objective is to be met", and the Acceptable Development provisions, while providing a simple and deemed-to-comply approach, are nevertheless "related it to the Performance Criteria".

42 In my opinion, on its proper construction, although the Objective of the boundary setback requirements in Element 3 does not expressly exclude street boundaries, as all development must comply with the Performance Criteria in order for the Objective to be met, the Objective implicitly excludes its application to street boundaries. Moreover, the terms of the Objective clearly imply that it is concerned only with setbacks to common boundaries, not to streets. The provision of "direct sun and ventilation" might well be dependent on adequate setbacks to buildings across common boundaries, but is unlikely to be dependent on setbacks to streets. The amelioration of impacts on "adjoining properties" is also likely to be dependent on adequate setbacks to adjoining properties, rather than to streets. Indeed, the very reference to "adjoining properties" is a clear indication that the Objective is concerned with boundaries separating "adjoining properties", not street boundaries. Similarly, although the Acceptable Development criteria do not expressly exclude their application to setbacks from street boundaries, as these criteria are simply a deemed-to-comply method of achieving the Performance Criteria and the Objective of the Element, they also implicitly exclude setbacks from street boundaries.

43 The words "See ... Element 3" in Table 1 to the R-Codes means "see Element 3 and determine whether it is relevant", not "see Element 3 and apply it where otherwise irrelevant". This does not mean that the reference to "Element 3" is an error or must somehow be ignored. Significantly, the minimum setbacks to both "Secondary Street" and "Other/rear" are each signified by the same asterisk. In the case of non-street setbacks, Element 3 is certainly relevant.

44 However, in order to avoid confusion of the type which has been engendered in the respondent's case in these proceedings, consideration should be given to amending Table 1 of the R-Codes so that the minimum setbacks to secondary streets and to non-street boundaries are signified in different ways.

45 Although I have determined that Element 3 is irrelevant in relation to condition 18(b), the respondent has also raised the issue of whether condition 18(b) is necessary to achieve an acceptable bulk and scale. That issue, which I consider below, includes (but is wider than) the consideration of the impacts of building bulk on adjoining properties, which was the consideration the respondent raised in relation to Element 3 of the R-Codes.

[64]

46 Mr Samec submitted that, without condition 18(b), the development does not conform to Element 2 of the R-Codes, because it is not set back an appropriate distance to ensure that it "contribute[s] to the desired streetscape". In support of his submission, Mr Samec relied on the evidence of Mr Zuideveld that the proposed setbacks to Queen Street, and in particular the proposed minimum 2.1 metre setback, is "out of character with the prevailing setbacks in Queen Street and is inadequate", and on the evidence of Mr Gatti who measured the setbacks of all buildings in Queen Street and calculated an average minimum setback of 5.4 metres (if one includes all buildings) and 4.6 metres (if one only includes the corner buildings). Mr Samec submitted that there is a "pattern" of setbacks in Queen Street, and that the proposed development is inconsistent with that pattern.

47 In my opinion, the objective evidence does not disclose any "prevailing setbacks" or consistent "pattern" of setbacks in Queen Street. Rather, the evidence, and in particular the evidence of Mr Gatti, shows that there is no prevailing setback or pattern. There are a wide variety of setbacks, ranging from zero setback in the case of a substantial wall along the Queen Street boundary of No 34 Mill Point Road, to a 5.5 metre setback for an eight-storey wall of an apartment tower at No 1 Queen Street, to the substantial setbacks of the three townhouses to the west of the subject site. I accept Mr Rowe's evidence, under cross-examination that, to the extent that there is a "pattern", it could only be described as "random", and that in the context of the varied built form and setbacks present in Queen Street, an averaging of the setbacks, as proposed by Mr Gatti, is of little assistance in determining an appropriate setback.

48 The absence of a prevailing or consistent pattern of setbacks in Queen Street does not mean that a zero setback will be appropriate on the site. It does, however, mean that, as Mr Adam stated in his oral evidence, one should assess the proposal against the Objective of Element 2, and in its proposed context. I accept Mr Adam's evidence that "the design of the building not only is fitting in the context of contemporary architecture in the locality, but also would make an attractive, interesting and positive contribution to the streetscape of Queen Street". In its particular and quite varied streetscape context, the proposed setbacks ranging from 2.1 - 5.0 metres on the levels in question are appropriate. The parts of the building which project forward of the Council's 3.0 metre line, particularly the partially curved dining room element and the semi-circular kitchen element, make a very positive contribution to the streetscape.

49 In his submission, Mr Hardy questioned the meaning of the term "the desired streetscape". In my opinion, on the proper construction of cl 3.2 of the R-Codes, the expression "the desired streetscape" refers to "attractive streetscapes and security for occupants and passersby" and "attractive setting for buildings" which form part of the Objective of the streetscape requirements. This is because, as noted above, the scheme of the R-Codes is that the Performance Criteria "must be satisfied if the Objective is to be met". In circumstances where there is a prevailing or consistent setback, maintenance of the setback might well be necessary to contribute towards an attractive streetscape, and thus the desired streetscape. However, the expression "the desired streetscape" is not a reference to the streetscape desired by any particular person, including a council. Rather, it is a reference to the qualities which, in any particular case, contribute towards an attractive streetscape, security for occupants and passersby, and an attractive setting for buildings.

50 Finally, in relation to the issue of streetscape, I note that a large part of the evidence of Mr Zuideveld, Mr Gatti and Cr Trent concerned the quite obvious differences between Queen Street and Fraser's Lane, where the Council approved a residential building having a setback of 2.1 metres to the lane frontage. In my opinion, the circumstances in which Council approved the development in Fraser's Lane, and indeed that development, are irrelevant to determination of the question of whether the proposed development is appropriate in terms of the streetscape of Queen Street.

51 I find, on the evidence of Mr Rowe and Mr Adam, that the proposed development will contribute towards an attractive streetscape and will provide an attractive setting for the building and, therefore, that it is set back an appropriate distance to contribute to the desired streetscape.

[66]

56 The principal issue in relation to bulk and scale in this case is whether, in the absence of condition 18(b), the proposed setback to Queen Street results in unacceptable building bulk impacts on adjoining properties. The respondent's case was formulated and presented in such a way that this issue was primarily advanced in the context of Element 3 of the R-Codes, which I have determined is irrelevant to street setbacks. However, in my opinion, the respondent's evidence and submissions in relation to the impacts of building bulk on adjoining properties is relevant in relation to considerations of bulk generally.

57 The only adjoining properties which could be affected in any way by the impacts of building bulk along the Queen Street frontage of the proposed building are those located on the property immediately to the west of the site, namely the townhouses at No 5, No 7 and No 9Queen Street. I accept the evidence of Mr Rowe that the majority of the proposed southern wall is oriented away from the property to the west, and could not be seen from that property. As noted above, the closest section of the proposed building to the property to the west which projects closer than 3.0 metres to the Queen Street property boundary has a maximum depth of 300 mm. This section is set back 3.0 metres from the common boundary with the townhouse property. I accept Mr Adam's evidence that the elimination of this 0.3 metre protrusion "would make a negligible difference to the visual impact on the adjoining property". As Mr Adam observes "this is partly because the balconies themselves are a significant visual presence, but largely because 0.3 metres is a small incursion, representing only an additional 3.15 square metres of building face, or 2.2 per cent of the total building face presented to Lot 4. It is doubtful if even a close inspection would detect a difference".

58 I also accept Mr Adam's evidence that the other three protrusions described above would have "no impact on building bulk as perceived from Lot 4, because of the distance involved", and because of the intervening balconies. The second, third and fourth protrusions closer than 3.0 metres to the Queen Street boundary are set back about 8 metres, 17 metres and 24 metres, respectively, from the common boundary with the property to the west.

59 It appears that there are two principal reasons on account of which Mr Zuideveld considers that the setback of the proposed development gives rise to excessive building bulk in the absence of condition 18(b). Firstly, in his opinion, the dining room protrusion and the semi-circular kitchen protrusion "combine visually as one element of built form about 9 metres wide with a setback of as little as 2.1 metres to Queen Street. They are part of one solid form". I do not accept this evidence. These two protrusions will clearly present as two separate and quite distinct architectural elements, visually separated by a recessed section of masonry and glass. In this regard, I prefer Mr Adam's evidence, which, in my opinion, accords with the plans and how the proposal will appear when constructed.

60 Secondly, Mr Zuideveld considers that No 5, No 7 and No 9Queen Street are underdeveloped and that redevelopment of this property is fairly "imminent". In his opinion, the proposed development is unacceptable in terms of building bulk on adjoining properties, in part because, when No 5, No 7 and No 9 are redeveloped consistently with the zoning and planning controls, the building bulk of the proposed building forward of the 3.0 metre setback requirement in condition 18(b) will have a detrimental impact on the redeveloped building on the adjoining site.

61 In his closing submissions, Mr Samec argued that, consistently with Mr Zuideveld's evidence, considerations of orderly and proper planning require an assessment of the impact of the proposed building, and in particular the sections which project closer than 3.0 metres to Queen Street, on the likely redeveloped building on the adjoining property. Mr Hardy took issue.

62 In my opinion, considerations of orderly and proper planning do require an assessment of whether a proposed building is set back sufficiently from boundaries so as not to give rise to unacceptable building bulk on a likely and compliant future building on an adjoining property. In the present case, it appears that redevelopment of the adjoining allotment is likely at some point in the future. The only criteria which establish a likely building envelope or form to which I have been referred by Mr Samec are the density and primary street setback requirements in the R-Codes. According to those requirements, a building comprising seven units and set back 4.0 metres from Queen Street is achievable.

63 In my opinion, even on the assumption that such a building will replace the three staggered townhouses on the adjoining property to the west, I am satisfied that the imposition of the condition in dispute is not necessary in order to achieve an acceptable bulk and scale. In particular, the two protrusions in the immediate vicinity of the adjoining property to the west would be barely perceptible from that property, even once redeveloped. The easternmost two protrusions are a considerable distance from the common boundary and would be shielded by balconies and other structures from a redeveloped building on the adjoining site.

64 I accept the evidence of Mr Adam that the building bulk of the proposal is within the reasonable contemplation of the zoning and planning controls which apply to the site. The bulk and scale proposed is acceptable in relation to both the adjoining property to the west and the public domain. Condition 18(b) is not required. Moreover, the interesting and varied architectural treatment proposed will mitigate bulk and scale. I accept Mr Rowe's evidence in this regard.

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Judgment (74 paragraphs)

Lex Kingdom and City of South Perth [2005] WASAT 11 (2 March 2005)