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[2005] WASAT 55
State Administrative Tribunal (WA)
2005-04-08
Original judgment source is linked above.
CITATION : ROBERT BACCALA and CITY OF FREMANTLE [2005] WASAT 55
Development application Building bulk Overshadowing Streetscape Adequacy of access - Pedestrian safety
City of Fremantle Town Planning Scheme No 3 cl 16 and cl 55
Residential Design Codes of Western Australia cl 3.31 A1, cl 3.5.3 A4.3, A4.5 and A5.2, cl 3.9.1 A1 and Fig 2D
2. Development approval granted subject to conditions
Newbury District Council v Secretary of State for the Environment [1981] AC 578
MR D R PARRY (SENIOR MEMBER):
REASONS FOR DECISIONS
1 This is an application by Robert Baccala ("the applicant") for review of the decision of the City of Fremantle ("the respondent") to refuse approval to a development application lodged by the applicant in relation to the property known as Lot 1247 (Nos 5A and 5B) Stack Street, Fremantle ("the site"). The proceedings were commenced as an appeal to the Town Planning Appeal Tribunal. That Tribunal ceased to exist on 31 December 2004. In accordance with s 167(4)(b) of the State Administrative Tribunal Act 2004, the proceedings were transferred to the State Administrative Tribunal on 1 January 2005.
2 Presently erected at the front or northern end of the site are two single-storey grouped dwellings which are connected centrally by two single garages. The building form of each existing grouped dwelling is the mirror image of the other. However, the western dwelling is stepped down the slope which runs east to west. The western end of the roof above the eastern dwelling presents as a gable end sitting above the roof of the western dwelling. In consequence, although the existing grouped dwellings are physically joined to one another, they present as separate dwellings having separate roof forms.
3 The site has a regular, rectangular shape, a width of 28.16 metres, a depth of 52.3 metres and an area of 1473 square metres. There is an existing internal fence to the rear or south of the existing grouped dwellings which separates the rear garden into two.
4 On 3 March 2005, I undertook a view of the site and of the immediate locality accompanied by representatives of the parties.
5 The development application which is the subject of these proceedings has two components. First, it is proposed to demolish the garage of the western existing grouped dwelling so as to create an accessway approximately 3.2 metres in width between the two existing grouped dwellings to the central and rear parts of the site. On 7 December 2004, the respondent granted conditional development approval to another development application which proposed alterations and additions to the western grouped dwelling and the demolition of the garage of that dwelling. However, condition 1 of that development approval deleted the demolition of the garage.
6 Second, it is proposed to erect a pair of attached 1 2 storey grouped dwellings at the rear or southern end of the site and to erect three double carports centrally within the site, one to serve each of the two proposed grouped dwellings and the western existing grouped dwelling.
7 The respondent accepted that the site has development potential for four grouped dwellings. However, it considered that the form of the development was unacceptable. In particular, it contended that the siting of the proposed building close to the southern boundary of the site and its physical, unbroken form would give rise to adverse impacts on the properties to the south. Furthermore, it contended that the access arrangements were unacceptable.
8 The development application was advertised to all affected property owners on 9 July 2004. An objection was received from the owner of No 3 Stack Street, which adjoins the site to the west, on the basis that "the balcony is in direct view of our property (entertaining and social area). We believe that we would lose our privacy if the plans were approved as shown". No objection was received from any of the owners of the properties adjoining the site to the south or east.
9 The development application has been amended, in effect, twice. First, in November 2004, the setback of the eastern proposed grouped dwelling to the rear or southern boundary of the site was increased from 1.5 to 1.8 metres and 2.4 metres. This amendment had the effect that the southern façade of the proposed building was broken up into three sections of (from east to west) 7.8 metres (setback 1.8 metres), 4.7 metres (setback 2.4 metres) and 12.9 metres (setback 1.5 metres). In contrast, the original plans proposed a uniform setback of 1.5 metres along a length of wall of approximately 26 metres. The November amendments also included 2.0 metre high privacy screens along the western edge of the elevated ground floor and first floor decks of the western proposed grouped dwelling and a return 1.6 metre high privacy screen along part of the northern edge of the first floor deck of that dwelling.
10 Second, during the hearing, the applicant proposed a condition of approval which, in effect, amends the plans of the western proposed grouped dwelling by reducing the eaves height to the southern elevation by 500mm.
11 The southern side of Stack Street is residential in character and is zoned "Residence" R25 under the City of Fremantle Town Planning Scheme No 3 ("TPS 3"). The dwelling houses in the immediate locality range from single to two-storey and exhibit a variety of architectural forms. At its southern boundary, the site adjoins two long and narrow properties which have their frontages to streets running perpendicular to Stack Street. The common boundary between the two properties to the south is approximately halfway along the width of the site.
12 The northern side of Stack Street in the vicinity of the site is zoned "Industry" under TPS 3 and comprises light industrial and commercial uses. Mr Jack, who represented the respondent, indicated that the northern side of Stack Street is proposed to be rezoned for residential purposes under a draft town planning scheme which was not tendered.
13 TPS 3 contains the following clauses which are of relevance to the present review:
"16. In determining any application the Council shall have regard to the purpose for which land is zoned or reserved under the Scheme, to the orderly and proper planning of the locality, to the preservation of the amenities of the locality and to the matters in Clause 77 and shall have due regard to any planning policy statement adopted by the Council relating to specific areas, use classes or building types and may refuse its consent, or may grant its consent subject to such conditions, if any, it may deem fit."
"21. Unless the context requires otherwise, the following terms have the meanings indicated: ...
"amenities" means the sum of all the expectations of the residents concerning the quality of their environment including its pleasantness, character, beauty, harmony in the exterior of buildings, privacy, preservation of views and security, and also means a facility providing use, convenience or enjoyment;"
"53. For the purposes of the Scheme 'residential planning codes' means the residential planning codes set out in Appendix 2 to the Statement of Planning Policy No 1, together with any amendments thereto."
"55. Unless otherwise provided for in this Scheme, the development of land for any of the residential purposes dealt with by the residential planning codes shall conform to the provisions of these codes."
14 On 2 November 2004, the respondent refused the development application for three reasons. By the conclusion of the hearing, the respondent no longer pressed two of those reasons, but had added another issue when it became apparent that the creation of the accessway to the proposed grouped dwellings formed part of the subject application. In particular, the respondent accepted during the hearing that the privacy screens introduced in the November 2004 amendments effectively addressed the issue of visual privacy in relation to the objector's property to the west. The respondent did not call the objector to give evidence.
15 It was agreed between the parties that the two issues for determination in these proceedings are as follows:
1. Whether the impacts of the proposed building in terms of bulk and scale and overshadowing are acceptable in relation to the two adjoining properties to the south.
2. Whether the proposed accessway is acceptable in terms of streetscape, vehicular and pedestrian access and safety.
16 It was the respondent's case that the building bulk and overshadowing impacts of the proposed building would have a detrimental impact on the two adjoining properties to the south and on their development potential. It was common ground that each of the adjoining properties to the south could be subdivided in a battleaxe configuration into two allotments. Mr Jack, who represented the respondent, contended that each of these allotments could be developed in the form of three grouped dwellings in a strata arrangement. Mr Willicombe, who represented the applicant, submitted that, because of the need to provide access, each of the adjoining lots could only be developed in the form of two grouped dwellings. Without deciding this question, I have assumed that each of the adjoining allotments could be developed in the form of three grouped dwellings.
17 In relation to bulk and scale, Mr Jack's evidence was as follows:
"• The rear setback at 1.5 metres to 2.4 metres remains contrary to Table 2a of the RD Codes given that the proposed height and length would require a minimum setback of 2300mm (height to eaves at 5.0 metres above natural ground level over a length of 26.0 metres).
• The 'terrace' style two-storey design at 26.0 metres in length occupies 92.3 per cent of the lot width and would have a detrimental impact on the development potential of the lots behind given the close proximity of the proposed dwellings to the rear boundary."
18 Mr Willicombe submitted that the bulk and scale of the proposal is mitigated by the fact that there are two properties to the south, and that, unless those properties were amalgamated, a single or grouped dwelling at the rear of either of these properties would only be exposed directly to part of the proposed building mass, and not to a direct view of the whole of the building mass. He also submitted that the proposed eaves heights were not excessive at 4.8 metres (2.4 metre setback), 3.5 4.3 metres (1.8 metre setback) and 3.2 4.5 metres (1.5 metre setback) taking into account the proposed condition that the eaves height of the western proposed grouped dwelling be reduced by 500mm.
19 In my opinion, in consequence of the amendments made in November 2004, the proposed development conforms to the Acceptable Development criteria for boundary setbacks under the Residential Design Codes of Western Australia ("the RCodes"). The Acceptable Development criteria relevantly require that the proposed building be set back in accordance with Table 1, Table 2 and Figure 2. It was common ground that the development is in accordance with Table 1. Table 2 is divided into two parts. Table 2a prescribes boundary setbacks for walls with no "major openings" whereas Table 2b prescribes boundary setbacks for walls with major openings. It was common ground that the applicable table in relation to the southern proposed wall was Table 2a and that the minimum required setback under that Table for a 26 metre wall is 2.3 metres.
20 However, Figure 2D of the RCodes "indicates a method for establishing setback measurements under Table 2a and 2b, subject to the privacy requirements of Element 8". Figure 2D shows an acceptable setback of a building in three planes. The amended plans accord with Figure 2D. In accordance with cl 3.3.1 of the RCodes, the development is therefore "deemed to meet the relevant Performance Criteria" for setbacks which relevantly include that buildings be set back from boundaries so as to "assist in ameliorating the impacts of building bulk on adjoining properties".
21 The development also conforms to the relevant Acceptable Development criterion in relation to design for climate. This criterion provides as follows:
"A1. Notwithstanding the boundary setbacks in Element 3, the development in Climatic Zones 4, 5 [the relevant Zone for the Perth region] and 6 of the State shall be so designed that its shadow cast at midday, 21 June onto any other adjoining property does not exceed the following limits.
• On adjoining properties coded R25 and lower 25 per cent of the site area; ...
Note: In this context 'site area' refers to the surface of the adjoining lot without regard for any building on it but taking into account its natural ground levels."
22 The shadow diagrams in evidence demonstrate that, at midday on 21 June, the shadow cast by the proposed development on the properties to the south-east and south-west of the site (in excess of that which would be cast by a 1.8 metre high boundary fence in any case) occupy only 5 square metres and 45 square metres, respectively, out of total site areas of 1080 square metres. Even taking into account the shadow cast by the fence, the shadow impact is well within the Acceptable Development criterion. In accordance with cl 3.9.1 of the RCodes, the development is therefore "deemed to meet the relevant Performance Criteria", which include that "development designed with regard for solar access for neighbouring properties".
23 Although nothing turns on it in this case, given that properties to the east and west of the site have not, as yet, been developed in a similar way to that proposed in the present application, I note that Acceptable Development criterion A1 of the design for climate requirements of the RCodes is drafted such that cumulative impact of overshadowing is not a relevant factor. In particular, the provision uses the words "its shadow". Given that, in other cases, while an individual development might not cast a shadow in excess of 25 per cent of the site area of a neighbouring property, cumulatively adjoining development might cast well in excess of 25 per cent, consideration should be given to whether the relevant criteria of the RCodes should be amended to address cumulative impact.
24 Although the proposed development conforms to the relevant provisions of the RCodes in relation to the impact of building bulk and overshadowing on adjoining properties, cl 16 of TPS 3 also requires the respondent, and the Tribunal on review, to have regard to "the orderly and proper planning of the locality" and "the preservation of the amenities of the locality". In accordance with the definition set out above, "amenities" would relevantly include avoidance of excessive bulk and scale of built form and reasonable access to direct sunlight. Although, in having regard to "the preservation of the amenities of the locality", the fact that a development conforms to a relevant provision of the RCodes is significant, it is not in itself determinative of the cl 16 consideration.
25 In the present case, the respondent submitted that, even if the development conformed to the RCodes, the siting of a 26 metre long building proximate to a southern boundary in an area zoned for redevelopment of adjoining sites was unacceptable.
26 In my opinion, the amendments made to the plans in November 2004, and the further amendment by way of condition proposed during the hearing, have made the development acceptable in terms of its bulk and scale. In particular, although the proposal involves an unbroken built form of approximately 26 metres in length, the built form has been set back in three planes. The highest section of built form has been set back furthest. The closest section of built form, while set back in a constant plane, has been reduced by 500mm in height, such that the eaves height of this section would project above the fence line by only 1.3 2.5 metres. The western proposed dwelling has been stepped down the east-west slope such that the roof form would not present as a single, continuous form, but rather as two different sections. The difference in the eaves heights of the two sections is, taking into account the proposed condition, approximately 1.6 metres. The bulk and scale of the proposal is further mitigated by the fact that the property to the south-east has been filled with boundary retaining walls, such that it is notably higher than the site, and the site adjoins two separate properties to the south, such that neither property would be exposed to a direct view of the full bulk and scale of the proposed built form.
27 In consequence, I am satisfied that the development would not give rise to an unacceptable visual impact in terms of building bulk when viewed from either property to the south.
28 I am also satisfied that, although the proposed building would plainly form part of the surrounding built environment, it would not detrimentally affect the development potential of either adjoining lot such as to warrant its refusal. Although I accept that redevelopment of the adjoining properties is likely to involve north-facing living areas and open space, I am satisfied that each of the lots could be developed for two or three dwellings in accordance with the zoning notwithstanding the proposed development.
29 I am satisfied that, although the proposed development would cast a shadow over a part of the adjoining properties in mid-winter, that impact is not unacceptable, either in terms of present use and enjoyment of those properties or the likely form of redevelopment of the properties. In particular, I am satisfied that each of the adjoining properties could be developed in the form of two or three dwellings with appropriate solar access notwithstanding the proposed development.
30 I note, for completeness, that in the original formulation of this issue in its notice of refusal, the respondent relied on its policy DBH1 Urban Design and Streetscape Guidelines. I accept the applicant's submission that this document is inapplicable in the present case. The express objective of this policy is "to conserve and enhance areas of architectural or historic character whilst encouraging harmonious development within the existing authentic character and appearance of the traditional residential areas of Fremantle". In my opinion, the area in question could not be said to be of "architectural or historic character". I do not accept Mr Jack's evidence that, because the southern side of Stack Street has "an established residential form" or "residential character" it is an area of "architectural ... character". In my opinion, "architectural ... character" requires more than a collection of disparate, domestic, architectural forms.
31 In Mr Jack's opinion, the demolition of the garage of the western existing grouped dwelling to create an accessway to the rear of the site has unacceptable streetscape implications. He gave the following evidence:
"The proposed demolition of the attached carport will have an impact on the residential form presented to the streetscape given that it will result in a 'lop-sided' design with no sense of symmetry between the existing properties at 5A and 5B Stack Street.
The proposal as submitted accentuates the 'tunnel' effect of the proposed rear access given that it is proposed to brick up the wall and roof space to the eastern elevation of the property creating a wall/roof area to a height of 4.6 metres above natural ground level to one side and 100mm setback to up to 5.3 metres on the other side."
32 In my opinion, the proposed modification to the front building to create the accessway does not give rise to any unacceptable streetscape impact. Although it is true that the existing building presents with a sense of symmetry, the streetscape in the immediate vicinity of the site is extremely varied in terms of built form. The building presently erected on the site has very little architectural merit. In my opinion, the elimination of the 'symmetry' in this context is acceptable. Moreover, the modifications proposed reduce the apparent bulk and scale of the existing building by dividing it into two.
33 I do not accept that the development has a "tunnel" effect on the streetscape. Although the accessway is approximately 3.2 metres in width, the masonry sections to its sides which, the respondent contends, give rise to or accentuate the "tunnel" effect, commence at setbacks of approximately 9.5 metres from the street. The sections of wall to the sides of part of the accessway are only 6.5 metres and 7.5 metres in length. The peak of the gables fronting the accessway are set back over 12 metres from the public domain. Moreover, the plans depict landscaping, including four trees in the frontage of the site and low-level shrubs along the sides of part of the accessway. The accessway will, therefore, appear as part of a landscaped setting within the streetscape. During the hearing, Mr Willicombe also suggested that climbing plants could be planted within the driveway to further soften the side walls of each of the front grouped dwellings.
34 Mr Jack submitted that the development is in breach of three Acceptable Development criteria set out in cl 3.5.4 of the RCodes. First, it was submitted that the development is in breach of Acceptable Development criterion A4.3 which requires that driveways be "no closer than 0.5 metres to a side boundary or street pole". The purpose of this criterion is obviously to mitigate the impacts of driveways on adjoining properties. The present application proposes the erection of two additional grouped dwellings to create four grouped dwellings on a single property. The accessway is centrally located within the site and is well separated from the side boundaries. The development is clearly not in breach of Acceptable Development criterion A4.3. However, the planning objective behind this provision might ultimately be relevant in relation to whether or not a subdivision application should be approved in relation to the site.
35 Second, it was submitted that the development is in breach of Acceptable Development criterion A4.5 which states that driveways of multiple and grouped dwellings are to have "a minimum width of 4.0 metres, which may be reduced to 3.0 metres where necessary to retain an existing dwelling". Mr Jack submitted that the garage of the eastern existing grouped dwelling should also be demolished, such that the two existing dwellings would retain symmetry and such that there would be a 4.0 metre accessway available to serve the development.
36 In my opinion, the facts of this case satisfy the exception to a 3.0 metre driveway requirement as stated in Acceptable Development criterion A4.5, because the reduced width is "necessary" to retain the existing garage which is, in both physical and functional terms, an integral part of the eastern existing grouped dwelling. The proposed development is, therefore, in conformity with Acceptable Development criterion A4.5.
37 Finally, Mr Jack submitted that the development is in breach of Acceptable Development criterion A5.2 which provides as follows:
"Where a communal accessway serving more than two dwellings is shared by pedestrians and vehicles, the accessway is aligned to provide clear sight lines and is provided with adequate lighting to ensure pedestrian safety."
38 Mr Jack raised a concern about pedestrian safety in two respects. First, the safety of pedestrians crossing on the public footpath to the north of the site. Second, the safety of pedestrians accessing one of the two proposed grouped dwellings through the accessway. In relation to pedestrians on the public footpath, there is sufficient space within the site for a vehicle exiting from the proposed accessway to stop within the site and observe both vehicular and pedestrian traffic before entering the public domain. In relation to pedestrian safety within the site on the accessway, I note that Acceptable Development criterion A5.1 provides, in effect, that there is no need for a dedicated pedestrian path separate from vehicular access in any development of less than ten units. In the present case, I am satisfied that the accessway is aligned to provide clear sight lines to pedestrians entering the site and walking down the accessway, and that, given the small number of dwellings served by the accessway, it does not give rise to any unacceptable pedestrian safety risk. In my opinion, the development conforms to Acceptable Development criterion A5.2 and provides acceptable access. I note that the applicant has proposed a condition of approval that adequate lighting be provided for pedestrian safety.
39 As required by a direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval. The applicant accepted these conditions, with the exception of condition 1. That condition purports to require that the access from Stack Street to the proposed grouped dwelling development be amended such that it provides a minimum paved width of 4.0 metres. In my opinion, such a condition is contrary to the second Newbury test that a condition must "fairly and reasonably relate to the development", and would therefore be beyond the power of the respondent or the Tribunal to impose; see Newbury District Council v Secretary of State for the Environment [1981] AC 578. The proposed condition does not fairly and reasonably relate to the development, because it effectively requires demolition of part of the eastern existing grouped dwelling, whereas the development does not involve any modification to that dwelling. Moreover, in my opinion, the condition is unnecessary in light of the reasons stated above.
40 The applicant has also proposed two conditions of approval, which were not opposed by the respondent.
41 Although, in opening, the respondent foreshadowed that a landscape plan would be required, the conditions did not include such a requirement. In my opinion, a landscape plan consistent with the landscaping shown in outline on the architectural plans, should be required by condition to be submitted and approved by the respondent. In addition, in my opinion, the conditions should require compliance with the architectural plans. The conditions set out in Attachment "A" to these Reasons for Decisions address these matters.
42 The existing boundary fencing to the south, east and west of the site comprises metal sheets with a variety of heights. It is unsightly and potentially unsafe. Although the parties agreed to a condition of approval that the southern boundary fence be replaced, in my opinion, it is appropriate in a composite development such as that proposed, and given the unsatisfactory state of the existing boundary fencing, for the developer to replace all boundary fencing at his cost. I have amended the relevant condition to this effect.
43 In my opinion, the proposed development is acceptable and worthy of conditional development approval. In particular, the development conforms to each relevant provision of the RCodes. It does not, in my opinion, give rise to unacceptable impacts on adjoining properties to the south in terms of bulk and scale or overshadowing, and it does not adversely affect the development potential of those lots such that it should be refused on the grounds of orderly and proper planning of the locality.
44 I have found that the access arrangement is acceptable in terms of both streetscape impact and accessibility. Although the access arrangement would sever an existing "symmetry", such symmetry is not necessary, in my opinion, to achieve an acceptable streetscape. In the rather varied streetscape context of the site, the streetscape impact of the development is acceptable.
45 The orders of the Tribunal are as follows:
1. The application for review of the decision of the respondent to refuse development approval to DA363/04 is upheld.
2. Development approval is granted to the modification of the existing building at 5A and 5B Stack Street, Fremantle and to the erection of two grouped dwellings and ancillary structures, subject to the conditions in Attachment "A".
I certify that this and the preceding 13 pages comprise the reasons for decision of the Tribunal.
_____________________________
D R Parry
Senior Member
1. The development shall be carried out in accordance with 8 sheets of plans drawn by Michael Willicombe Architectural Design being Sheet 1 Site Plan Revision A dated 7 November 2004, Sheet 2 Floor Plans Revision A dated 7 November 2004, Sheet 3 Floor Plans Revision A dated 7 November 2004, Sheet 4 Elevations Revision A dated 7 November 2004, Sheet 5 House Floor Elevations Revision A dated 7 November 2004, Lot 2 Floor Plan, Lot 2 Elevations and Stack Street Composite Elevation of the existing grouped dwellings as modified.
2. The manoeuvrable areas for carbays/carports and garages shall be designed to allow vehicles to turn in a single turning movement at a radius of not less than 5.5 metres and exit in forward gear.
3. A landscape plan shall be submitted to and approved by the Council prior to the issue of a building licence. The landscape plan shall incorporate the five trees and landscaping along the edges of the accessway shown on the plans referred to in Condition 1. The landscape plan shall also include fast-growing climbing plants to cover the masonry walls adjoining the accessway. The approved landscape plan shall be implemented and shall be maintained.
4. A construction management plan shall be submitted prior to the issue of a building licence detailing matters such as staging, dust mitigation, construction/development times, complaint resolution, product storage, workers' carparking arrangements and site rehabilitation during the construction phase of the development. The plan shall be implemented, as required, to the satisfaction of Council.
5. The existing verge trees in front of the site shall be retained and protected before, during and after construction. Details of the method of protection to be used shall be submitted to the satisfaction of the Director Urban Management.
6. The existing boundary fencing shall be replaced with suitable common solid fencing to a maximum height of 1,800mm as measured from the external base of the fence. Details shall be submitted to the satisfaction of the Director Urban Management prior to the issue of a building licence.
7. Details of external colours and materials shall be submitted prior to the issue of a building licence to the satisfaction of the Director Urban Management.
8. Retaining wall(s) shall be constructed to the satisfaction of the Director Urban Management. Structural details of all proposed retaining walls shall be submitted for approval prior to the issue of a building licence.
9. The existing crossover shall be upgraded, and thereafter maintained, to the satisfaction of the Council prior to occupation of the new dwellings.
10. The development shall be connected to the reticulated sewerage system prior to occupation.
11. All stormwater shall be contained and disposed of on site.
12. Adequate lighting shall be provided to the communal accessway with automated night-time illumination, with no light overspill, prior to occupation of the new dwellings. Details to be submitted prior to the issue of a building licence.
13. The eaves height of House 4, being the western proposed grouped dwelling, to the southern elevation shall be reduced by 500mm.
Newbury District Council
Secretary of State for the Environment