Development - Two storey Single House with loft - Scale and bulk - Height - Overshadowing - Setbacks - Privacy - Local Planning Policies - Impact on Locality and adjoining properties

Town of Vincent Town Planning Scheme No 1, cl 5, cl 6, cl 10, cl 10, cl 18, cl 19, cl 20, cl 32, cl 33, cl 38(5), cl 40, cl 47, cl 47(9)

Town Planning and Development Act 1928 (WA), s 8A(1)

Permanent Trustee Australia v City of Wanneroo (1994) 11 SR (WA) 1

Arseven v Town of Vincent (2003) 34 SR (WA) 57

Kemeny v Town of Vincent (2004) 35 SR (WA) 237

Voulon v Town of Vincent (2002) 31 SR (WA) 261

1 Laura Christian applied to the State Administrative Tribunal (the Tribunal) for review of the decision of the Town of Vincent refusing planning approval for the construction of a two storey "Single House" with loft on Lot 11 (Strata Lot 4) (No 15) Hutt Street, Mount Lawley.

2 The Tribunal determined that the proposed development would not adversely affect the character of the locality or give rise to unacceptable impacts on the adjoining property to the south in terms of bulk and scale or overshadowing. The application for review was therefore allowed and planning approval granted subject to conditions.

3 This is an application by Laura Christian (the applicant) for review of a decision of the Town of Vincent (the respondent) to refuse planning approval for the construction of a "two storey Single House with loft" on Lot 11 (Strata Lot 4) (No 15) Hutt Street (corner Grosvenor Road), Mount Lawley (subject land).

4 The development application was refused by the respondent at its Ordinary Meeting of 8 February 2005. In refusing the application, the respondent gave the following reasons:

"1. The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality.

2. The non-compliance with the setbacks, privacy and outdoor living area requirements of the Residential Design Codes.

3. There are opportunities to redesign the single house to suit the site, which is a vacant lot.

4. The proposed loft results in the proposal being three storeys in height, resulting in non-compliance with the two-storey (including loft) height limit applying to the area, which is within the Alma Locality.

5. The creation of an undesirable precedent in the locality.

6. Non compatibility with the provisions of the Alma Locality.

5 The applicant, on 15 March 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (the Act) to have the decision reviewed.

6 Lot 11 has a total area of 527 square metres of which 219 square metres comprises Strata Lot 4. The applicant is the registered proprietor of Strata Lot 4.

7 The subject land was created from a corner lot subdivision and is currently vacant. The original lot has its frontage to Grosvenor Road.

8 The site plan submitted as part of the application shows that the front and rear boundaries of the subject land measures 16.72 metres and the depth of the northern and southern side boundaries are 13.11 metres and 13.01 metres respectively.

9 Single storey residences abut the subject land to the north, south and west.

10 The proposal involves the construction of a "Single House" which is described as two storey incorporating a loft. The dwelling is approximately 190 square metres in area (excluding garage and balcony area) consisting of sitting, living and dining areas, two bedrooms, a bathroom, laundry, loft area (nominally the main bedroom), ensuite and double garage.

11 The respondent's planning officers, as part of their assessment of the proposal, prepared a table to demonstrate non-compliance with the Acceptable Development provisions of the Design Codes. The non-compliance aspects of the table are reproduced below:

12 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS) and residential development is an appropriate use in the Urban zone.

13 Development of the subject land is also governed by the Town of Vincent Town Planning Scheme No 1 (TPS 1). Lot 11 is currently zoned "Residential" with a permitted site density of R40 as illustrated on the TPS 1 Maps. In the "Zone Table" contained in TPS 1, the use class "Single House" is classified as a "P" (permitted) use in the "Residential" zone and as such, the proposed development is a permitted use.

14 A single dwelling is exempt from planning approval, under cl 33 of TPS 1, where it complies with the Residential Design Codes (Design Codes) and where the Council considers the amenity of the area generally is not adversely affected. However, as some aspects of the proposed development are non-compliant with the Acceptable Development provisions of the Design Codes, planning approval is required in accordance with cl 32 of TPS 1.

15 Clause 6 sets out the Objectives and Intentions of TPS 1. Of particular relevance to this matter is the following objective:

"(3)(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which -

(i) recognises the individual character and needs of localities within the Scheme zone area; and

16 Clause 18 of the TPS 1 requires the development of land to be in accordance with the standards and requirements contained in the following documents:

"... Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential [Design] Codes."

17 Clause 10 of TPS 1, which reinforces the objective stated in cl 6, divides the scheme area into precincts and notes that for each precinct there is a planning policy contained in the Council's Policy Manual. The subject land is located in precinct "P10 Norfolk" and the corresponding planning policy is entitled "Policy No: 3.3.20 Alma - Locality Plan 20" (Alma Locality Policy).

18 Pursuant to cl 19 of TPS 1, the Design Codes are to be read as part of TPS 1 and development of land for residential purposes dealt with by the Design Codes is to conform to the provisions of those Codes.

19 Clause 20(5) of TPS 1 states:

"The Council will consider variations to Residential [Design] Codes where it considers that acceptable levels of residential amenity can be achieved."

20 Subclause 38(3) of TPS 1 provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, subclause 38(5) of TPS 1 sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:

"(a) the provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme;

(f) any submission accompanying or related to the application;

(g) the orderly and proper planning of the locality; and

(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."

21 Clause 47 of TPS 1 empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to TPS 1. These policies may be applied to all or part of the scheme area. The following policies, referred to by the parties during the course of the hearing, have been formulated and adopted by the Council under this provision of the TPS 1:

b) Policy No: 3.2.1 - Local Character (Local Character Policy);

c) Policy No: 3.2.8 - Building Scale (Building Scale Policy); and

22 Subclause 47(9) of TPS 1 provides that a planning policy prepared under cl 47 shall be consistent with the TPS 1 Text and where any inconsistencies arise, the provisions of the TPS 1 Text prevail.

23 Clause 40 of the TPS 1 provides for the consideration of "non-complying applications" and establishes specific additional criteria that need to be satisfied for planning approval to be granted. The respondent did not argue that this application was a "non-complying application" as defined under cl 40. The Tribunal agrees, given the discretion available to the respondent under the Residential Design Codes and the ability to vary the requirements of the above-mentioned policies.

24 Mr Meggitt, appearing as agent for the respondent, argued that the proposed development did not comply with either the Design Codes in respect to boundary setbacks, privacy and solar access, or the respondent's policy framework.

25 Mr Meggitt contended that TPS 1, through its general objectives and intentions, placed an emphasis on the need to recognise the individual character and needs of the Localities within the scheme area and that a comprehensive policy framework had been adopted by the respondent. According to Mr Meggitt, these policies document the "character" of each Locality and provide specific guidance as to the type of development that may complement the established character of each area. He identified the subject land as being located within an area referred to as "Alma - Locality Plan 20" of the Town of Vincent Residential Design Guidelines. To establish the desired future character of this area, he quoted the following paragraphs from the Alma Locality Policy:

"Housing generally dates from the early decades of the 20th century. Almost all houses are single storey, with Federation and Californian Bungalow houses being the predominant styles.

... [N]ew contemporary development are encouraged provided that the design responds to the established character ...

Buildings are to generally be setback from all boundaries in landscaped garden ... Additionally, priority will be given to ensuring that new housing does not result in an undue loss of privacy or amenity for existing residents."

26 In regard to specific design controls, the following passage from the Alma Locality Policy was quoted by Mr Meggitt:

"A general height limit of two storey (including loft) can be considered provided the second storey (including loft) is generally setback a minimum of 6 metres from the street and the amenity of the area is protected in terms of privacy, scale and bulk."

27 Mr Meggitt described Hutt Street as predominantly residential and characterised the scale of development as single storey. He also considered the majority of dwelling in the Alma Road Precinct to be relatively modest cottages of a single storey nature. He contended that the design of the proposed dwelling, given the scale and bulk of the building, was not sensitive to the character of the area and not consistent with the other houses in Hutt Street.

28 Mr Meggitt considered the proposed dwelling to be three storeys in height and non-compliant with the two storey height limit. His description of the design of the dwelling in relation to height was as follows:

"... what we've got here is actually a three-storey with the third storey designed in such a way that the roof wraps around it."

29 He also submitted that the loft area is not ancillary space within the roof but rather a key primary space, which would function as a third storey.

30 Mr Meggitt also asserted that the design of the proposed development was not sensitive to the amenity of the owners of the adjoining properties, particularly No 54 Grosvenor Road (the property to the south), as the bulk and scale of the proposed dwelling would result in the loss of sunlight, overshadowing, overlooking, a loss of privacy, and noise and light spill to the adjoining properties. He referred to submissions, received by the respondent, from owners of adjoining properties objecting to the proposed development to add emphasis to the claim of loss of amenity on surrounding properties. These submissions were not included as evidence nor were the authors called as witnesses to give evidence at these proceedings.

31 It was Mr Meggitt's contention that the cumulative non-compliant aspects of the proposed development in relation to the Design Codes resulted in a dwelling that is quite bulky and out of scale with the street and as such would have an adverse impact on the adjoining properties.

32 Ms Christian contended that the only aspects of the proposed development that did not comply with the Acceptable Development provisions of the Design Codes were: (1) the outdoor living area; and (2) the first floor dining room in relation to the privacy setback requirements.

33 With respect to the other aspects of the proposal in question, the applicant maintained that the proposed development complied with the Acceptable Development provisions of the Design Codes. To the extent that these aspects did not comply with the various local policies of the respondent, the applicant argued that the Design Codes should be given primacy over the policies given that the Design Codes, pursuant to cl 19 of TPS 1, are to be read as part of TPS 1. She further contended that the policies were either ultra vires and therefore invalid, or ought not be taken into account because of a failure to meet the test set out in Permanent Trustee Australia v City of Wanneroo (1994) 11 SR (WA) 1. By reason of the conclusions reached by the Tribunal below, it is unnecessary to consider this submission.

34 Ms Christian also referred to the planning officer's report presented at the Ordinary Meeting of 8 February 2005. This report involved an assessment of the proposal that concluded in a recommendation that Council approve the application subject to the following five conditions:

"(i) compliance with all relevant Environmental Health, Engineering and Building requirements;

(ii) no fence shall exceed a maximum height of 1.8 metres above the ground level. Decorative capping on top of posts and piers may extend up to a maximum height of 2.0 metres. The solid portion of any new front fences and gates adjacent to Hutt Street shall be a maximum height of 1.2 metres above the adjacent footpath level, with the upper portion of the front fences and gates being visually permeable, with a minimum of 50 per cent transparency;

(iii) to protect the reasonable privacy of the adjacent residents, prior to the first occupation of the development:

(a) the south and east side of the balcony on the upper floor shall be screened with a permanent obscure material and be non-openable to a minimum height of 1.6 metres above the finished first floor level; and

(b) the windows to the loft on the south elevation on the loft floor shall be screened with a permanent obscure material and be non-openable to a minimum of 1.6 metres above the finished loft floor level.

A permanent obscure material does not include a self-adhesive material or other material that is easily removed;

(iv) prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating:

(a) the upper floor display and coverhead cupboard recess wall being setback a minimum of 1.8 metres from the western side boundary; and

(b) the upper floor being setback a minimum of 4.0 metres to the main dwelling from the Hutt Street boundary;

(v) subject to first obtaining the consent of the owners of No. 54 Grosvenor Road for entry onto their land the owners of the subject land shall finish and maintain the surface of the boundary (parapet) wall facing No. 54 Grosvenor Road in a good and clean condition;

to the satisfaction of the Chief Executive Officer."

35 Ms Christian summoned Ms Mack, who was the planning officer at the Town of Vincent and who prepared the above-mentioned planning report, to give evidence at these proceedings. Ms Christian questioned Ms Mack as to the reasons why the respondent's planning officers, in assessing the proposed development, did not refer to a number of the policies now being relied upon by Mr Meggitt. Ms Mack informed the Tribunal that in relation to the Visual Policy it was considered that the Design Codes took precedence over this policy as the Design Codes where gazetted after the policy. In relation to the Local Character Policy and the Building Scale Policy, Ms Mack stated that the proposed development was considered as compliant with these policies, subject to the conditions outlined in the officer's recommendation to Council.

36 Finally, Ms Christian disputed Mr Meggitt's assertion that the proposed dwelling was not consistent the character of the locality and produced a series of photographs that showed recent developments of a similar bulk and scale approved within the Alma Locality area. Mr St John, who is a town planning consultant, was called as a witness for Ms Christian. He was of the view that, from a street perspective, the proposed dwelling was of comparable scale and bulk to the ones contained in the photographs produced by Ms Christian. Mr St John also gave evidence that similar discretions, to those required by this proposal, were exercised in the approval of the developments shown in the photographs.

37 Under cross-examination, Mr Meggitt agreed that a number of aspects of the design of the proposal raised were compliant with the provisions of the Design Codes. These included: the boundary wall (ground floor south setback), the first floor east setback, the loft windows facing south, the outdoor living area (as it met the Performance Criteria specified in cl 3.4.2P2), overshadowing and the height of the building. Mr Meggitt also agreed that a number of the solutions agreed to by the applicant resulted in other aspects of the proposal complying with the Design Codes. These included the modification to the balcony area in accordance with "Line of Sight Diagram B" and the setting back of the upper floor" display and coverhead cupboard recess wall" to 1.8 metres.

38 In the context of non-compliant issues, the only outstanding issue between the parties involved the ground floor northern wall of the built in robes, which was conceded to be a minor variation.

39 Notwithstanding the above, Mr Meggitt continued to argue that it was the culmination of issues that compounded to adversely affect the amenity of the adjoining properties, and the locality and the design of the proposed dwelling failed to satisfy the respondent's policy requirements.

40 On the evidence, it would seem clear that the issues of moment are related to the setback of the first floor level to Hutt Street, overshadowing and height/bulk and scale. Privacy is no longer considered to be an issue as long as the balcony area is modified in accordance with "Line of Sight Diagram B".

41 The Tribunal is cognisant of the fact that the proposed "Single House" results from a subdivision of an original corner lot, which has frontage to the original secondary street. The respondent, in coding the area R40, has accepted that medium density development would occur within this locality. Evidence of this is the subdivision of the parent lot. Given the size and dimension of the subject land, development is likely to be two storey if it is to meet modern expectations for new housing. Therefore, to some extent any development on the lot would almost inevitably differ from existing housing stock in Hutt Street, at least in terms of height. While the Tribunal accepts that the predominant style of development in the locality is single storey, it does not agree that any policy framework applying to the subject land leads to the conclusion that only single storey development should be permitted. Relevantly, the respondent's Building Scale Policy acknowledges the inevitability of two storey houses. As evidenced by the photographs submitted by Ms Christian, the height of the proposed dwelling, although two storey with a loft, would not be out of harmony with other dwellings in the Alma Locality. The height of the dwelling is compliant with the provisions of the Design Codes and consistent with the Alma Locality Policy and the Building Scale Policy.

42 The proposed setback to Hutt Street complies with the Acceptable Development provisions contained in the Design Codes and although the Alma Locality policy advocates a greater street setback, it does not take into account situations where the original lot has been subdivided. Evidence was provided and Mr Meggitt conceded that there were instances in the Alma Locality where the respondent has been inconsistent in their approach to setbacks to secondary streets. The applicant has attempted to reduce the impact of the proposed dwelling on the streetscape by varying the setbacks of the ground and upper floor levels along the street frontage and varying the height of different elements in the elevation. These design features are intended to break the façade to provide visual relief and to soften the impact of the façade on the street and as such, the Tribunal is satisfied that the design of the eastern elevation would not adversely affect the amenity of the area.

43 In relation to overshadowing, Mr Meggitt conceded that the shadow cast by the proposal complied with the Acceptable Development provisions of the Design Codes but argued that the private open space of the adjoining property would be significantly affected. The applicant clearly demonstrated, through the use of a shadow diagram, that a significant portion of the outdoor living area is affected by the shadow cast by the existing 1.8 metre high boundary fence. The shadow diagram also shows that the majority of the shadow cast by the proposed dwelling will overlap the shadow cast by the existing fence and over the existing dwelling. There is a marginal increase in the area of the outdoor living area affect by shadow, which is to be expected given the orientation of the land. Mr Meggitt conceded in cross-examination that a wall of similar height and length to the wall on the northern boundary, setback 1.5 metres from the southern boundary, which is compliant with the Design Codes, could have a greater impact on the outdoor living area of the adjoining property.

44 On the evidence, the Tribunal is satisfied that the proposed development will not adversely affect the character of the locality or give rise to unacceptable impacts on the adjoining property to the south in terms of bulk and scale or overshadowing. For the above reasons, the Tribunal considers the proposed development to be acceptable and worthy of conditional planning approval.

45 As required by a direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval, which included the conditions recommended by the respondent's planning officers in their report to Council at the meeting of 8 February 2005 (which are set out above) and an additional condition requiring the bathroom in the loft to be deleted. The applicant raised issue with four of the conditions relating to:

a) the screening of the loft, as it is compliant with the Acceptable Development provisions of the Design Codes;

b) the screening to the balcony, as the suggested modification as contained in "Line of Sight Diagram B" would satisfy the Acceptable Development provisions of the Design Codes;

c) the upper floor being setback 4 metres from the street boundary, as it is compliant with the Acceptable Development provisions of the Design Codes; and

d) the deletion of the bathroom from the loft area.

46 Given the compliance with the Acceptable Development provisions of the Design Codes in relation to the loft window, the Tribunal does not consider a condition necessary in relation to this aspect. A condition requiring the balcony area to be modified in accordance with the alternative provided by the applicant will resolve the visual privacy issue of the balcony in relation to the south. The Tribunal does not consider that a condition requiring the upper level of the proposed dwelling to be setback 4 metres from the street boundary is necessary for the reasons outlined above. In relation to the condition requiring the bathroom to be deleted from the loft area, the respondent offered no evidence as to the purpose of this condition. The Tribunal does not consider this to be a reasonable condition in this instance.

2. Planning approval is granted for the construction of a two storey Single House incorporating a loft as detailed in series of plans (3) date stamped "Town of Vincent Amended Plans - 17 January 2005" on Lot 11 (Strata Lot 4) (No 15) Hutt Street (corner Grosvenor Road), Mount Lawley subject to the following conditions:

a) No fence shall exceed a maximum of 1.8 metres above the ground level. Decorative capping on top of posts and piers may extend up to a maximum height of 2.0 metres. The solid portion of any new front fence and gates adjacent to Hutt Street shall be a maximum height of 1.2 metres above the adjacent footpath level, with the upper portion of the front fences and gates being visually permeable, with a minimum of fifty per cent transparency.

b) The balcony area shall be modified in accordance with "Line of Sight Diagram B".

c) Prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating:

(i) the upper floor display and coverhead recess wall being setback a minimum of 1.8 metres from the western side boundary.

d) Subject to first obtaining the consent of the owners of No 54 Grosvenor Road for entry onto their land the owners of the subject land shall finish and maintain the surface of the boundary (parapet) wall facing No 54 Grosvenor Road in a good and clean condition.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS M CONNOR, MEMBER