State Administrative Tribunal (WA)|2005-05-13|Before: Mr J, Sub Precinct P

Pouleris and Town of Cambridge [2005] WASAT 108 (13 May 2005)

CITATION : POULERIS and TOWN OF CAMBRIDGE [2005] WASAT 108

Development - Parapet boundary wall - Exercise of discretion - Streetscape - Effect on the amenity of adjoining property

1 This is an application for review against the refusal by the Town of Cambridge ("Respondent") to approve an application submitted by Mr C Pouleris on behalf of Mr J and Mrs C Pouleris of Lot 69 (No 9) Norbury Crescent, City Beach for alterations and additions to the existing single storey dwelling to include a garage and portico as shown on the plans dated 20 September 2004 for the reasons that:

(i) the proposal does not comply with the Acceptable Development Requirements or satisfy Performance Criteria of the Town of Cambridge Residential Designs Guidelines s 6 - Boundary Setbacks and the Residential Design Codes of Western Australia part 3.2 Element 3 - Boundary Setbacks cl 3.3.2 P 2 "Buildings on Boundary" Performance Criteria; and

(ii) the landowners of the adjoining property (No 7 Norbury Crescent, City Beach) have objected to the proposal;

2 There is currently a single storey dwelling with an attached carport situated on the appeal land, and the land slopes from Norbury Crescent to the rear.

3 The dwelling is set back over 15.0m from the front boundary while the existing carport which is the subject of the development application is currently set back just over 9.0m from the front boundary.

4 The subject land is Zoned "Residential R12.5" under the respondent's Town Planning Scheme No 1 ("TPS 1") and "Urban" under the Metropolitan Region Scheme and the respondent identified the land as being within Sub Precinct P 1B - Games Village of its Residential Design Guidelines - Precinct Statements.

5 The application was assessed against the requirements of TPS 1 cl 33(2) which is consistent with cl 2.3.1 of the Residential Design Codes ("Design Codes") which states that planning approval is required if a proposed development requires the exercise of discretion in respect of any matter under the Design Codes.

6 The respondent's reasons for refusal also referred to the Town of Cambridge Residential Design Guidelines s 6 ("design guidelines") which relates to boundary setbacks.

7 The relevant part of the Design Codes is Element 3 - Boundary Setback together with Table 1-General Site Requirements, Table 2-Boundary Setbacks and Figure 2: Measurement of Boundary Setbacks, all of which establish the setback requirements for wall heights 10.0m and less.

8 In the present case the parapet wall was assessed as being a variation to the Acceptable Development requirements of the Design Codes and the Design Guidelines.

9 As the proposal did not meet the Acceptable Development requirements of the Design Codes, the respondents could consult with owners of neighbouring properties. However the owner of the adjoining property, No 7 Norbury Crescent had already written a letter confirming that they were objecting to the parapet wall on the grounds it would have an adverse impact on the amenity of their property. The application therefore required Council to exercise its discretion.

10 It was common cause between the applicant and respondent that it was appropriate to assess the boundary wall against the Performance Criteria set out under cl 3.3.2 P2 of the Design Codes which reads as follows:

Buildings built on boundaries other than the street boundary where it is desirable to do so in order to:

• make effective use of space; or

• otherwise enhance the amenity of the development; and

• not have any significant adverse effect on the amenity of the adjoining property; and

• ensure that direct sun to major openings to habitable rooms of outdoor living areas of adjoining properties is not restricted".

11 Furthermore s 6.4 of the Design Guidelines under the heading performance criteria states:

"In considering an application proposing walls on boundaries, the Council should apply the Performance Criteria in Pt 3.3.2 P.2 of the R Codes prior to determination".

12 As we see later, it is on this basis that the respondent considered the application and it was in respect of those Performance Criteria that both parties addressed the Tribunal and called evidence.

13 Mr Pasqualino Bracone, Manager of Planning Services for the respondent gave evidence and confirmed that the applicant's plans were assessed and a variation to the Acceptable Development requirements of Design codes and the respondent's Design Guidelines relating to boundary setbacks was identified.

14 Mr Bracone stated that under cl 3.3.1 A1(i) of the Design Codes the proposed garage requires a 1.5m setback (wall of 10.1m long and less than 3.5m high), whereas the plan submitted showed a nil setback.

15 It should be noted however that the parapet wall measures 9.0m on the plans lodged with the respondent on 20 September 2004, the balance being made up of a short wall at the front of the proposed garage on which the meter box is located and which appears on the plans to be set back 1.6m from the boundary.

16 Mr Bracone further stated that cl 6.3.1 of the design guidelines stated that the proposed parapet wall should meet setback standards provided by Tables 1 and 2 and Figures 2 and 3 of the Design Codes and it had not, therefore it required the respondent to use its discretion and consult with the owners of neighbouring properties.

17 Mr Bracone went on to explain that the Town had not actually been required to formally consult with the owners of the adjoining property to the east (No 7 Norbury Crescent) as the applicant had already consulted with them and obtained written comment by letter dated 17 September 2004 which stated:

"We have considered the location of your proposed garage on the boundary between Nos 7 and 9 Norbury Crescent, City Beach.

We refer you to the Cambridge Council Residential Building Guidelines. This clearly states that recommended offset from the boundary is 1.0m. In addition, the Planning Department state that the blocks in this area are of a size that it is not necessary to locate buildings close to the boundary.

The short section of a high wall would not be satisfactory. We would however, consider a brick wall on the boundary provided that it extended the full length of the boundary".

18 The author of that letter, Mr Rogers gave evidence at the hearing and confirmed that what he was objecting to was the applicant's plans to build a 2.7m high by 9.0m long parapet wall as part of a four car garage on the western boundary between Nos 7 and 9 Norbury Crescent with nil offset.

19 In his evidence Mr Rogers confirmed that he had lived at No 7 Norbury Crescent since 1978 and in his opinion the proposed parapet wall would have a significant adverse effect on the outlook from No 7 Norbury Crescent in that it would restrict vision from his house. It was in his opinion not in keeping with the streetscape in general and that providing 9 m of parapet wall on the boundary would leave the remaining 18.6m of boundary fence as it was in asbestos cement.

20 Mr Bracone confirmed in his evidence that the main issues were whether the proposed garage parapet wall has a significant adverse effect on the amenity of the adjoining property to the east and the streetscape in general.

21 It was agreed among the parties that similar to No 9 Norbury Crescent, No 7 Nobury Crescent is also well set back from the street with landscaped gardens between the dwelling and the kerb and there is currently a low wall on the boundary in the location of the proposed parapet wall.

22 The driveway to the existing carport at No 9 Norbury Crescent slopes down from Norbury Crescent and the existing carport is open at the front and on the eastern side.

23 The applicant proposed to locate a storage area at the eastern side of the proposed garage abutting the western face of the proposed parapet wall. The roof of the storage area was to be a flat and approximately 1.6m in width and would be joined up to the pitched roof of the proposed garage.

24 Mr Bracone confirmed that parapet walls for residential development are sometimes approved and are not entirely uncommon and there are examples of parapet walls in the area. However in considering the application the respondent deemed that the level of non-compliance with the Acceptable Development requirements and Performance Criteria relating to boundary setbacks would result in an adverse impact on No 7 Norbury Crescent and therefore was not prepared to approve the development.

25 Mr John Gray, a Residential Design Consultant appeared and gave evidence on behalf of the applicants. He confirmed that the development proposed a reduced setback from the eastern boundary from 1.0m to a zero setback.

26 Mr Gray stated that in addition to the provisions outlined earlier the respondent was requested to exercise its discretion based on cl 5.6 of its Design Guidelines which states:

"Variations to the compliant standards may be approved by the council where, in the opinion of the council, the following criteria is met:

(a) Setback is compatible with the established line and pattern of setback in the street;

(b) A reduction in the setback would not adversely impact on the pattern of development in the street because of the position, shape or topography of the Lot;

27 Mr Gray agreed with Mr Bracone that when an application does not comply in relation to boundary setbacks it is to be assessed against the criteria outlined in cl 3.3.2 - Buildings on a Boundary of the Design Codes.

28 Mr Gray referred to a recommendation of the respondent's DES Committee to Council dated 26 October 2004, a copy of which was attached to Mr Bracone's statement of evidence as "PB5" which stated in reference to the five listed performance criteria in cl 3.3.2 of the R Codes:

"The proposed garage parapet wall is considered to satisfy the first, second, third and fifth points above. The encroachment into the setback area is for storage within the garage. The design makes effective use of space and provides a secure storage area for the occupants of the dwelling. Access to direct sun form the north to major windows and outdoor living areas of the adjoining property to the east will not be affected by the proposed garage parapet wall.

The main issues are whether the proposed garage parapet wall has a significant adverse effect on the amenity of the adjoining property to the east and the streetscape in general".

29 Mr Gray pointed out that in its recommendation to council the committee had later in the same report stated:

"Ordinarily, if the adjoining landowners had not objected to the proposed garage parapet wall, it is likely that the application would be approved under delegated authority as the impact of the proposed parapet wall on the streetscape is not considered to be significant". [Our emphasis]

30 Mr Gray also made the point that in his letter of 17 September 2004 Mr Rogers had stated:

"The short section of the high wall would not be satisfactory. We would however consider a brick wall on the boundary provided it is extended the full length of the boundary".

31 This admission, Mr Gray contended showed that Mr Roger's objection would be withdrawn if the applicant's built a brick fence over the entire length of the boundary and not just the initial 9.0m at the front.

32 It was agreed by the party's that the Performance Criteria be applied to the circumstances of this case and the Performance Criteria that were in fact applied by the respondent in reaching its decision are outlined in cl 3.3.2 P2 of the Design Codes, details which are set out above.

33 At the hearing it was common cause between the party's that the main issue was whether the proposed parapet wall has a significant adverse effect on the adjoining property to the east and the streetscape in general.

34 Although not directly referred to in its reasons for decision, the issue of streetscape was raised in evidence by both Mr Bracone and Mr Rogers on the basis that the acceptance of boundary walls is greater in medium density areas compared with low density areas such as areas subject to the present review coded R 12.5.

35 However, no explanation was given as to why the same wall would be acceptable from a streetscape perspective with a setback of 1.0m as suggested by both the respondent and Mr Rogers.

36 Furthermore, no explanation was offered as to why the respondent's own committee's view, that the impact of the proposed parapet wall on the streetscape is not considered to be significant, should not be accepted.

37 In the circumstances although the issue of streetscape was mentioned it was not argued strongly and nor in my opinion should it have been keeping in mind the respondent's willingness to give favourable consideration to the same parapet wall set 1 m to the east and the respondent's own committee's view that the impact of the proposed parapet wall on the streetscape was not significant.

38 Mr Rogers was also willing to accept the parapet wall with a 1.0m setback or indeed a brick wall with no setback but which extended along the entire length of the side boundary.

39 In all the circumstances, therefore I am not satisfied that the impact on streetscape is of such a level that, it should mitigate against the granting of the application.

40 An issue, which needs to be clarified at this point, is the actual setback required by the R Codes.

41 Mr Bracone stated that pursuant to cl 3.3.1 A1 (i) of the R Codes the proposed wall required a 1.5m setback as the wall was 10.1m long and less than 3.5m high. On the other hand, Mr Gray believed that a 1.0m setback was correct.

42 By reference to the plans dated 3 September of 2004 and stamped as being lodged with the Town of Cambridge on 20 September 2004 in particular drawing number one of three, it can be seen on that plan that the parapet wall concerned is 9.0m in length. The overall length of the proposed garage including the front portion which is set back 1.6m, is 10.1m.

43 In the circumstances pursuant to Table 2A of the R Codes I am of the opinion that the correct setback is 1.0m.

44 As to whether the proposed garage parapet wall would have a significant adverse effect on the amenity of the adjoining property to the east, a number of matters must be considered:

(a) Mr Rogers, the owner of the adjoining property at No 7 Norbury Crescent confirmed that he would be happy to have a brick wall on the boundary provided it ran the entire length of the boundary rather than the first 9.0m as is proposed. It should be noted however Mr Rogers did confirm in evidence that he was referring to a 1.8 m high boundary wall and not a 2.7 m high wall as is proposed.

(b) If a boundary wall at 1.8m high was built instead of the proposed 2.7m the effect of the bulk on Mr Rogers' property would however be no different because 1.0m inside that boundary wall a garage with a gabled roof at a pitch of 30 degrees would be erected the top of which would be far higher than either the boundary wall at 1.8m or the proposed parapet wall at 2.7m. The effect of this can be seen from the photograph attached to Mr Rogers' proof of evidence which he prepared and submitted which has red lines showing the parapet wall, garage wall and garage roof.

(c) Furthermore, when put to Mr Bracone whether in his opinion the proposed parapet wall would have a "significant" adverse effect on the amenity of the adjoining property (i.e. No 7 Norbury Crescent) as per the fourth Performance Criteria of cl 3.3.2 of the Design Codes Mr Bracone replied that he could not say that the adverse effect would be "significant".

45 That is important in light of the DES Minutes attached to Mr Bracone's written statement as "PB5", which Mr Bracone accepted was still the respondents position in the appeal and which confirmed that the proposed wall was considered to already satisfy the first, second, third and fifth performance criteria of cl 3.3.2 of the Design Codes.

46 In all the circumstances therefore and in light of the matters outlined above the Tribunal is not convinced on the evidence before it that the parapet wall as proposed would have a "significant" adverse impact on the adjoining property or on the streetscape and for the forgoing reasons, the appeal is allowed.

(2) The development application lodged with the respondent on 20 September 2004 is approved subject to such reasonable conditions to be imposed either as a result of the parties' agreement, or as determined by the Tribunal, in accordance with Order 4.

(3) Pursuant to s 29(5)(b) and s 82(1) of the SAT Act 2004 (WA), Orders 1 and 2 do not come into effect until such time as the conditions referred to in Order 2 are finalised, at which time the Tribunal will provide a consolidated order setting out all the conditions of the approval.

(4) The matter is listed for a half-day hearing commencing at 10 June 2005 for the conditions of approval to be argued, unless the parties file a Minute of Consent Orders setting out the conditions to be imposed prior to this date.

(5) The respondent is to file with the Tribunal and serve on the applicant a list of conditions it wishes to impose by 31 May 2005.

I certify that this and the preceding (10) ten pages comprise the reasons for decision of the Tribunal.

____________________________

M Spillane - Member

Pouleris and Town of Cambridge [2005] WASAT 108 (13 May 2005)

At a glance

Court

Decision date

Before

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Source

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Judgment (43 paragraphs)

Pouleris and Town of Cambridge [2005] WASAT 108 (13 May 2005)

Legislation Cited (1)