DELIVERED : Edited reasons delivered extemporaneously on 15 JUNE 2006

Town planning ­ Proposed development of six storey residential building ­ Density coding of R160 ­ Compliance with building height requirements of Residential Design Codes ­ Determination of desired height of buildings in the locality ­ Factors affecting "desired height" ­ What constitutes relevant locality ­ Compatibility with townscape ­ Impact on streetscape ­ Whether policy adopted as a response to application should be applied in determining application

City of Albany Town Planning Scheme No 1A, cl 4.12, cl 7.21, cl 7.21.2(a), cl 7.8A, cl 7.8A(f),

Residential Design Codes of Western Australia 2002, cl 1.4, cl 3.7.1, cl 3.7.1A1.1, cl 3.7.1P1

Filton and Town of Vincent [2006] WASAT 70

Edited transcript of reasons given ex tempore

1 These proceedings involve an application by Ridgecity Holdings Pty Ltd (Ridgecity) for review of the decision of the City of Albany (the City) to refuse a development application in relation to lots 9 and 12 (No's 79 to 89) Earl Street Albany (the site). The proposed development comprises 39 multiple dwellings in a single building above two basement levels, each containing 39 carparking bays and 27 storage units.

The site and other developments in Earl Street between Aberdeen Street and Spencer Street

2 The site has a total area of 2924 square metres, and a frontage of 60.49 metres to Earl Street, at its northern boundary. The site falls from north to south in the direction of Princess Royal Harbour, and along the street frontage from east to west. The north-south fall along the eastern boundary is by approximately 4 metres from approximately 10 metres AHD to approximately 6 metres AHD. The east-west fall along the street frontage northern boundary is by approximately 2 metres from approximately 10 metres AHD to approximately 8 metres AHD. The north-south fall along the western boundary is by approximately 2 metres from approximately 8 metres AHD to approximately 6 metres AHD.

3 The site is located on the south eastern perimeter of the Albany central business district. The eastern allotment of the site is not physically developed, and is used for informal car parking. The western allotment of the site comprises a large single storey commercial building with a saw-toothed roof, which is built to the northern, eastern and western boundaries. This building is currently being used for film production.

4 On the southern side of Earl Street, there are two properties between the western boundary of the site and Aberdeen Street, and five properties between the eastern boundary of the site and Spencer Street. These properties each comprise single storey original late 19th century or early 20th century cottages, with the exception of the second last property to the east, which is vacant. The two cottages immediately to the west of the site, and the three cottages immediately to the east, are used for commercial purposes. The western half of the northern side of Earl Street, across the road from the site, and to the north-west of the site, contains a car dealership with an open car yard across the road and a part one, part two storey building near the corner of Earl Street and Aberdeen Street. To the east of the car yard is a property which appears to comprise two single storey grouped dwellings, and to its east is a single storey dwelling. The last property in the section of Earl Street between Aberdeen Street and Spencer Street is the Earl of Spencer hotel, which is listed as a place of heritage value in Appendix VIII of the City of Albany Town Planning Scheme No 1A (TPS1A or the Scheme).

5 The areas to the east and north of the properties fronting Earl Street between Aberdeen and Spencer Streets are residential precincts on the south-western slopes of Mount Clarence, which predominantly comprise one and two storey dwelling houses, with some buildings used for holiday accommodation.

6 To the south-west and north-west of the site is the core area of the Albany central business district, which comprises generally one and two storey retail and commercial buildings, with some three storey buildings. The property immediately to the south of the site is a part elevated two storey, part three storey commercial building.

7 More broadly, the site sits within the originally settled portion of Albany, which appears to be referred to locally as the Saddle, bounded by Mount Clarence to the north-east, Mount Melville to the north-west, and Princess Royal Harbour to the south. The townscape of this portion of Albany consists predominantly of buildings which have similar massing, common building lines and relatively uniform height and scale. Against this background, certain landmark buildings, such as the Town Hall, Scots Uniting, St John's and Wesley churches, and the Post Office spire are readily apparent.

8 We accept the evidence of Mr Patrick De Villiers, a town planner who gave evidence on behalf of the City, that "[i]n terms of residential townscape, the consistency of scale in existing housing in central Albany is remarkable", although we consider that this characterisation is apt in relation to the commercial component of central Albany as well.

9 We also accept the evidence of Mr Ken Adam, a town planner and architect who gave evidence on behalf of the City, that there is "a relatively homogenous and consistent urban 'grain' that is, buildings of relatively consistent height, massing and spacing, albeit that they may be quite individual and distinctive in their design within the scale constraints".

10 The remarkable consistency in building form and scale, or urban grain, is particularly apparent when the town is viewed from the foreshore adjacent to the Harbour, up the slopes of Mount Clarence and Mount Melville and the rising valley in between.

11 The site is zoned "Central Area" and has a residential density coding of "R160" under TPS1A. Under the zoning table to the Scheme, "multiple dwelling" is a use that is "not permitted unless planning consent to it is granted by the Council", that is, it is a discretionary use. The density coding R160 is identified in the Residential Design Codes of Western Australia 2002 (the Codes) as a "high density code" and is indeed the highest high density code specifically contemplated by the Codes. The coding would permit a maximum of 46 units on the site.

12 Immediately adjoining the site to the east and across the road from the site is land zoned "Residential" and coded "R30", although the car dealership and yard and the Earl Spencer hotel are zoned to permit special additional uses of vehicle sales and service, and restaurant and tavern, respectively. The juxtaposition of an R160 coding and an R30 coding across a property boundary is an example of very poor strategic planning, which gives rise to significant practical planning difficulties (see the Codes at pages 8 - 9).

13 The proposed building would present to Earl Street as comprising three building elements. These are, from east to west, a three storey element, the eastern half of which has a splayed frontage facing north-east, with the first level set approximately 1 metre below street level at its eastern end, gradually rising to approximately half a metre below street level, a five storey section stepping slightly forward and directly addressing the street, and a five storey section with a splayed frontage facing north-west, with a sixth level set well back from the street. The parts of the building which directly address the street have a combined length of approximately 37 metres out of a frontage of 60.49 metres.

14 The building would present to the street as a three and five storey building, although the sixth level would certainly be apparent from the street when the site is viewed from the north-west over the adjoining single storey cottages, and down the proposed driveway on the western side. The driveway and adjoining landscaped area would be approximately 7.5 metres at the street frontage and for most of its length, reducing to approximately 3.5 metres towards the rear of the building. While the lowest basement level would be excavated, and the upper basement level would be below the level of Earl Street, when the building is viewed from the street, down the driveway, the upper basement and six levels above would be apparent.

15 The proposed footprint of the building is essentially U-shaped, with the open part of the "U" oriented towards the Harbour. The result is that each of the 39 units and their terraces would have the benefit of harbour views.

16 The development application was advertised and resulted in over 300 submissions, an unusually high level of response from the community on a development application. The overwhelming majority of submissions object to the proposal. Practically all of the objections consider that the height of five storeys is unacceptable in the context of the site. Many objections state that Albany should have a height restriction of three storeys. Many objections also consider that the location of the site is such that a five storey building will negatively dominate Albany's skyline, when viewed from the public domain in locations such as the central business district and Princess Royal Harbour.

17 No objection has been made by the owners of any of the adjoining properties. Some submissions support the application, particularly on the basis that it would improve the appearance of the site, and introduce vibrancy to the edge of the central business district.

18 It is to be noted that the application has been amended twice since it was advertised. First, in July 2005, the fifth level on the eastern side was deleted. Second, in April 2006, the fourth level on the eastern side was deleted and the sixth level added on the western side. Although the essential footprint of the building has remained the same, the number of units has been reduced from 46 to 39 by these amendments.

19 The application was recommended for refusal by the City's officers. The first set of amended plans were refused by the City on 22 September 2005 for the following four reasons:

"1) The proposed development does not comply with the Acceptable Development requirements, or the associated Performance Criteria, of Elements 2 and 7 of the Codes.

2. The form, scale and mass of the proposed development does not comply with the objectives of the 'Urban Design and Streetscapes Guidelines for Infill Development in Albany'.

3. The proposed development does not comply with the principles of proper and orderly planning.

4. The development is not compatible with its setting or the preservation of the amenity of the locality."

20 We record that we had the benefit of a view of the site and of the locality accompanied by representatives of the parties on the first day of the hearing. We also entered the properties of three resident objectors who subsequently gave evidence on behalf of the City.

21 The following five principal issues arise for consideration in this review:

1. Does the development conform with the building height requirements in element 7 of the Codes?

2. Is the development compatible with the townscape of Albany?

3. Is the impact of the development on streetscape acceptable?

4. Is the impact on views of Princess Royal Harbour enjoyed by residences to the north and east of the site acceptable?

5. Is the development inconsistent with the Central Albany Urban Design Policy (the Urban Design Policy)?

Does the development conform with the building height requirements in element 7 of the Codes?

22 Clause 4.12 of TPS1A states that the development of land for any of the residential purposes dealt with by the Codes "is to conform with the provisions of those Codes". Element 7 of the Codes concerns building height. The objective of this element is "[t]o ensure that the height of buildings is consistent with the desired scale in a given locality". The corresponding acceptable development provisions in cl 3.7.1 A1.1 states that development that involves "buildings which comply with Table 3 for Category B area buildings are deemed to meet the relevant performance criteria, except where otherwise stated in a Local Planning Policy". It is common ground that there is no relevant Local Planning Policy. Maximum building heights for Category B buildings in Table 3 are 7 metres to the top of the external wall, with a concealed roof, and 9 metres to the top of the pitched roof. This roughly translates to a two-storey residential building.

23 It is common ground that the acceptable development height for Category B buildings are exceeded at all points of the proposed development. The maximum exceedence is in the south-western portion of the building, where it rises to a full six storeys plus upper basement in a single plane above natural ground level. In that portion, the proposed wall height is approximately 20 metres.

24 It is also, therefore, common ground that in order for the development to conform with the building height requirements of the Codes, it must satisfy the relevant performance criteria. The performance criteria for building height stated in cl 3.7.1P1 of the Codes is as follows:

"Building height consistent with the desired height of buildings in the locality and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:

• adequate direct sun to buildings and appurtenant open spaces;

• adequate daylight to major openings to habitable rooms; and

25 The term "adjoining property" is defined in cl 1.4 of the Codes to essentially require that the development site share a common boundary with the adjoining property. The Tribunal finds that the proposed building height does not fail to protect the amenities of adjoining properties. In particular, and although, as we will discuss later, the building would eliminate some views of significance enjoyed by residential properties to the north and east, those properties are not adjoining properties. Further, although the development is likely to significantly overshadow the adjoining property to the south, that property comprises a commercial office development which is oriented away from the site.

26 The critical terms in relation to the issue of building height are "the desired height of buildings" and "in the locality", neither of which is defined in the Codes.

27 In his written evidence, Mr Gregory Rowe, a town planner who gave evidence on behalf of Ridgecity, said that "there is no clear statement identifying the desired height and bulk for the area in the absence of Scheme provisions or a suitable planning policy" and that "the method of applying the density coding in conjunction with the applicable plot ratio for the site is the most suitable means of controlling the height and bulk of the development".

28 Mr Rowe considers the height and scale of the development is consistent with the desired height of buildings, essentially because the height is less than that which would normally be expected for a multiple dwelling development on land with an R160 coding, that has been developed to its full capacity. Mr Rowe emphasises in particular that the development proposes 39 units, whereas a maximum of 46 would be possible on the site under the coding. He considers that:

"The height of the proposed building relates to the density coding of the site, and is a product of what it is."

29 In his oral evidence, Mr Rowe accepted that the scale of existing built form is also an important consideration in determining the desired height of buildings in the locality. Mr Adam also considers that the desired height requires compatibility with what exists. However, Mr Adam disagrees with Mr Rowe in relation to whether density coding is relevant to desired height. Mr Adam considers that density coding is important in determining the type of development, but is irrelevant in relation to the desired height. Finally, Mr Adam considers that although the Urban Design Policy does not apply in terms to multiple dwelling development on the site, one can interpolate from its provisions the desired height of development on the site.

30 The Tribunal considers that the determination of the desired height of buildings in the locality under cl 3.7.1P1 of the Codes is generally informed by a number of considerations, including principally:

i) the maximum building height in the acceptable development provision;

ii) the maximum building height prescribed in an applicable planning instrument or policy;

iii) compatibility with the predominant height of existing buildings; and

31 As to the first consideration, the explanatory text to the Codes states at page 13 that apart from providing a straight forward pathway to assessment and approval, the acceptable development provisions provide "guidance as the level of response to a performance criterion that might be acceptable".

32 However, the Tribunal agrees with Mr Adam's evidence that the acceptable development provision for Category B buildings is simply irrelevant to a high density coding such as R160. It cannot, therefore, in the particular circumstances of this case, inform the desired height.

33 As to the second consideration, although the R160 density coding has been in place since 1983, the City has failed to prescribe a height control in its Scheme. As Mr Adam says, this is regrettable and hardly good planning. This is particularly the case given the poor juxtaposition of codings which we have referred to earlier. The failure to include a height development standard in the Scheme for 23 years is not explained or excused by the fact that the subject application appears to have been the first to propose this form of development. A strategic planning authority is necessarily required to prescribe reasonable controls and guidelines in anticipation of development, not in response to it.

34 As Mr Robert Fenn, the City's Executive Director of Development Services conceded in oral evidence, the development application the subject of this review was the catalyst for the development of the Urban Design Policy. The process which led to the Policy commenced by a resolution of the City on 27 July 2005 to engage Mr De Villiers to prepare the policy document. The development application had been lodged several months earlier, and had been deferred by the City shortly before the resolution to engage Mr De Villiers. The draft policy document was adopted by the City on 15 November 2005, under cl 7.21.2(a) of TPS1A and was advertised for a period of 8 weeks. Approximately 80 submissions were received during the advertising period, including one on behalf of Ridgecity. On 18 April 2006 the City adopted the policy with minor modifications to the draft. The adopted policy was advertised on 11 May 2006.

35 The Tribunal is required by cl 7.8A(f) of the Scheme to have "due regard" to any policy adopted under cl 7.21. However, in having regard to a policy, the Tribunal would generally give little weight to a policy which is in substance responsive to a particular pending development application. Self-evidently, a development application to which a policy is responsive was formulated in the context of a planning regime which did not include the policy. The fact that the development application is capable of amendment, or is subsequently amended, is not in point.

36 The present circumstances are, however, unusual in two respects. First, although the subject development application was the catalyst for the formulation of the Policy, the Policy in fact applies to the whole of the Saddle as well as an area to its north. Second, as its author, Mr De Villiers concedes, the Policy does not in fact contemplate the proposed form of development on the site. Although Mr Adam considers that the height controls which are applicable to single houses and grouped dwellings in the residential precinct of the policy, of which the site forms part, can be interpolated to apply to the proposal, we do not agree. As the Tribunal determined in Filton and Town of Vincent [2006] WASAT 70, single dwellings and grouped dwellings, on the one hand, and multiple dwellings, on the other, are significantly different forms of development, in that whereas single and grouped dwellings generally occupy a separate and distinct portion of a site, multiple dwellings generally occupy a site communally.

37 We consider that the Urban Design Policy is to be given weight in relation to the desired height of buildings in the locality, not in relation to the specific proposal for the site, but rather in relation to properties in the central business district precinct, which adjoins the site to the west and south, and to other properties in the residential precinct of which the site forms part. The proposed development would sit in the context of buildings in these precincts. In the central business district precinct, cl 7.5.1 of the Policy prescribes a maximum height of three storeys, and cl 7.5.2 prescribes a maximum floor to ceiling height of 4.5 metres for the ground floor, 3.5 metres for the first floor, and 3.0 metres for the second floor. The desired height of buildings in the central business district precinct is, therefore, up to three levels, or 11 metres plus slabs and roof structure. In the residential precinct, cl 9.5 of the Urban Design Policy prescribes a maximum height of two storeys, as set out in Category B of Table 3 of the Codes, measured in accordance with the Policy, for single houses and grouped dwellings, with the potential for non-habitable undercrofts, and, on sites over 2500 square metres, for a third level, complying with Category C of Table 3 of the Codes, measured in accordance with the Policy, for up to 40% of grouped dwellings, subject to certain performance criteria.

Compatibility with predominant height of existing buildings

38 As to the third consideration, as noted earlier, the predominant height of existing buildings is one and two storeys with some three storey buildings in the Albany central business district, and one to two storeys in residential areas.

39 As to the fourth consideration, the applicable density coding has some bearing on desired height, although not the complete bearing or correlation contended for by Mr Rowe. Thus a density code of R35, which is the lowest coding which contemplates multiple dwelling development, anticipates two storey development, as a multiple dwelling is a dwelling which is in substantial part vertically above another dwelling. Each subsequent coding also contemplates single houses, grouped dwellings and multiple dwellings. Although it is correct that the high density codes of R80, R100 and R160 anticipate more than two storey development, there is no precise correlation between higher codings and a certain number of floors, or a numerical height.

40 The same residential density can be achieved in a variety of ways, subject only to the ingenuity of the architect or designer. The proposed building has a U-shaped footprint, is three storeys at one end, and six storeys above basement at another. Although it proposes less than 46 units, the same number of units as are presently proposed, or more units, could well be achieved in a lower building, which has a different footprint. We do not, therefore, consider that a six storey building is an inevitable consequence of development in accordance with an R160 coding.

The relevant locality for the purposes of the Codes

41 Mr Adam considers that the locality relevantly encompasses three interrelated localities, namely the locality of Earl Street, between Aberdeen Street and Spencer Street, the locality comprising the residential properties to the north and east, and the whole of the Saddle. Similarly, Mr De Villiers considers that the bulk and scale of the proposed development needs to be assessed in terms of its impacts on both the townscape of central Albany and on the immediate streetscape of Earl Street. Mr Rowe agrees with Mr Adam's first locality, can see some point in Mr Adam's second, but considers Mr Adam's Saddle locality "a bit of a stretch". Under cross-examination, Mr Adam conceded that if the locality can encompass only one of his three, the relevant locality would be the immediate streetscape.

42 The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case. In the particular and somewhat unusual context of the Saddle of Albany, we accept Mr Adam's evidence that the locality relevantly encompasses each of the three localities to which he referred, as each are areas in which the height of the proposed development gives rise to town planning impacts.

The desired height of buildings in the locality

43 On the basis of the four considerations we have referred to, and the locality in which the height of the development would have impacts, we find that the desired height of buildings in the locality is up to three stories, or about 11 metres in the area to the south and west of the site, and up to two storeys in the area to the north and east of the site. To satisfy the performance criteria, the development must be consistent with this desired height.

Is the proposed development consistent with the desired height?

44 The height of the development is apparent from photo simulations prepared by Mr John Cleary which we will attach to our written reasons (Attachment A). On the basis of the photo simulations, and the plans of the development as we understand them, we have little hesitation in accepting Mr Adam's and Mr De Villiers' evidence to the effect that, as well as impacting adversely on the immediate streetscape, the proposed building would present a disruptive element in the visual character of the broader locality, as viewed by residents and others from its residences and streets, and that, given the height of the structure, the resulting bulk will mean that the structure will dominate not only the built fabric in the immediate locality, but central Albany.

45 The Tribunal finds that the proposed building height, and in particular the fifth and sixth levels, is not consistent with the desired height of buildings in the locality. Although as Mr Antony Ednie-Brown, an eminent architect who gave evidence on behalf of Ridgecity, observes, the proportion of the site covered by the fifth and sixth floors is 24% and 14%, respectively, as is apparent from the photo simulations, the upper two levels would be very prominent and discordant with the desired height of buildings in the locality when viewed from the north, west and south. Furthermore, although there is no photo simulation from the foreshore adjacent to the centre of the town, Mr Rowe and Mr Fenn agree that variously three and a half or the full six storeys would be apparent from those areas, and that even once land in the line of sight, which is now undeveloped, was developed, the view would be of three or three and a half storeys. The building would be very prominent from this important public viewing position, and its apparent height would not be consistent with the desired height of buildings in the locality.

46 It follows that the development application must be refused under cl 4.12 of the Scheme as it does not conform with cl 3.7.1 of the Codes.

Is the development compatible with the townscape of Albany?

47 It is strictly unnecessary to consider this issue and the remaining issues. However, as there was considerable evidence, and debate, we will briefly address them.

48 Clause 7.8A of the Scheme requires the City and the Tribunal on review to have regard to nominated considerations in considering a development application. The considerations include the aims of the Scheme (par (a)), the requirements of orderly and proper planning (par (b)), the compatibility of the development with its setting (par (i)), and the relationship of the proposal to development on other land in the locality, including the likely effect of height, bulk, scale, orientation and appearance of the proposal (par (o)). The general objects of the Scheme include:

"To protect the environment, both natural and cultural, and the character of attractive features and localities within the District."

49 As we have noted earlier, the urban grain of Albany reflects a remarkable consistency in scale of built form. It is likely that, given the height controls in the Urban Design Policy, the consistent scale will remain, although the predominant height of buildings in the central business district may well increase over time from one to two storeys, to two to three storeys. Particularly when viewed from the foreshore, this consistency and the consequent prominence of landmark civic and religious buildings is an important and attractive feature within the local government area.

50 The Tribunal finds that the proposed development would be incompatible with the townscape of Albany, principally because of its height, particularly when taken together with its width and consequent overall bulk and scale. Although in the exercise of planning discretion, this consideration must be balanced against all other relevant considerations, including the zoning and coding of the site, we consider that it is ultimately a determinative consideration in the circumstances of this case.

Is the impact of the development on streetscape acceptable?

51 Mr Ednie-Brown made a number of observations which we accept, namely:

"The residential fenestration, balconies, modelling of the building elements, a landscaped setback and [other] aspects ... all contribute to a residential character which is appropriate and complementary at a location where the property shares a boundary with a residential zone."

52 It was accepted by the experts that the zone interface requires some transition in the built form. We accept that the substantial setback to the eastern boundary, and the two to three storey presentation of the eastern part of the building, is properly responsive to this need. We consider, however, that the five storey presentation of the development on the western end has, by its excessive scale, an unacceptable impact on streetscape. The reason is the significant disparity with all other buildings and likely future built form in the streetscape.

53 It is clear that the proposed development would significantly impact on the views of some residences to the immediate north and east of the site. The impact would be reduced as one moves up the slope.

54 However, given that the affected properties enjoy views over an underdeveloped part of the central business district, they could not reasonably expect to maintain those views without some interruption indefinitely.

55 Given our earlier findings, it is not necessary for us to determine whether the degree of interference with views would warrant refusal of the application.

Is the development consistent with the Urban Design Policy?

56 There is an issue in the proceedings as to whether the Urban Design Policy can properly be applied to the proposed development. That issue largely turns on the inconsistency which arises because the site, while zoned Central Area, has been included in the residential, rather than in the central business district precinct for the purposes of the Policy. Mr De Villiers conceded that the Policy might require amendment in relation to the demarcation between these two precincts, depending on the outcome of the formulation of a new planning scheme for Albany.

57 The conflict between the Policy and the zoning, the uncertainty as to the future scheme provisions, and the failure of the Policy to address multiple dwelling development, adequately or at all, combine to make application of the Policy to this particular application difficult. However, as Mr Wittkuhn, who made submissions on behalf of Mrs Dorothy Price, observed, as the Policy is a professionally-prepared, advertised and City-adopted one, the Tribunal should have regard to its objectives to the extent they are relevant to this application.

58 Those objectives include:

"• Ensure that new development is articulated to respond to the scale of the existing townscape - particularly when seen looking down from the surrounding residential areas

• Ensure that the height of new buildings is not out of scale with the existing fabric of the central business district."

59 Those objectives are relevant to the determination of the desired height of buildings in the locality, and given the process that has led to its adoption, the Policy is a relevant consideration in relation to the matters referred to in cl 7.8A of the Scheme.

60 The application is required to be refused as it does not conform with the Codes in relation to building height. Had it been within the planning discretion of the Tribunal to approve the application, it would have been refused because of the impact on the townscape of Albany.

2. The decision of the respondent refusing the application to commence development is affirmed.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT

Attachment A