TO APPROVE OR NOT APPROVE?

Perspective

One of the projects I’m currently working on is a new two-storey home in Bedford, for clients Peter & Susanne. Unfortunately, we’ve encountered some problems obtaining development approval.

These are the facts:

  1. The development application was received the City Bayswater on the 13th July 2015.
  2. As part of the development application process, comment was sought from adjoining neighbours. One complaint was received from the south-east neighbour.
  3. In the City of Bayswater, if a complaint is received, the development application must be considered and voted upon by the elected members of the City.
  4. Development applications are first considered by the Planning & Community Services (PCS) Committee Meeting, consisting of six of the elected members.
  5. The Committee receive a report  from one of the City’s planning officers that summarises the proposed development, recommending approval or refusal, and reasons for the recommendation.
  6. Committee members then vote on whether to accept or reject the planning officer’s recommendation, and provide reasons for their decision.
  7. While the decision of the Committee is not yet binding, its recommendation is then put forward for voting upon by all elected members at the next Ordinary Council Meeting . The outcome of this vote is then considered final.
  8. Peter and Susanne’s proposed dwelling was up for consideration at the PCS committee meeting scheduled for the 9th November 2015. The agenda for this meeting contained the planning officer’s report recommending approval (you can read the officer’s report on page 49 here), with some conditions.
  9. Both the adjoining neighbour and ourselves were invited to speak for five minutes prior to the commencement of the meeting. As the planning officer was recommending approval, we decided not to speak. The adjoining neighbour accepted the offer to speak to the Committee.
  10. During the meeting, the committee voted unanimously to overturn the planning officer’s recommendation for approval, and instead recommended refusal for Peter & Susanne’s proposed dwelling.  The reasons given by the committee can be found here on page 60.
  11. The development application for Peter & Susanne’s new home will now be determined at the next ordinary council meeting, to be held on Tuesday 17th November 2015 (tomorrow, as I write this). All 11 elected members will receive both the planning officer’s original report and the committee’s recommendation, and will then be asked to vote on the development application.

Here is where the facts end. What follows is a mixture of professional judgement, opinion, hearsay and speculation. I’ve done my best to avoid the use of sarcasm.

As I’m sure you can appreciate, this turn of events has come as a surprise and disappointment to Peter & Susanne. In my experience, it is highly unusual for a committee to completely reject a recommendation of one of the City’s planning officers.

Despite having worked closely and collegiately with the City of Bayswater planning department to achieve what we believe is an eco-effective design outcome that makes a positive contribution to the streetscape, it would appear that this is not supported by the Committee for reasons that are not immediately apparent.

As noted in the minutes from the Planning and Community Services meeting, the adjoining neighbour offered the following opinions regarding the proposed design:

  1. Side setbacks: The bulk and orientation of the proposed development is inappropriate for the area.
  2. Overlooking: The development directly impinges on the privacy of the neighbouring property.

Side setbacks

The claim that “the bulk and orientation of the proposed development is inappropriate for the area” is subjective, and in our view cannot be substantiated with respect to the Residential Design Codes of Western Australia and/or the planning policies of the City of Bayswater. To our knowledge, there is nothing in either of these documents or planning policies applicable to the proposed development that prohibits such a development.

12&12A

Examples of existing two-storey dwellings in the locality.

While the locality consists predominantly of single storey dwellings, there is an existing precedent of two storey dwellings within proximity of the proposed development and the primary street, as can be seen at Nos. 12, 12A & 38 in the same street.

The proposed floor plan with upstairs living areas and balcony has been carefully designed and oriented to maximize the solar passive design opportunities for both the site and dwelling, helping to keep the home cooler in summer and warmer in winter without reliance upon artificial heating and cooling. The proposed construction materials and finishes have also been selected based on their durability and environmental footprint, in addition to aesthetic considerations.

We believe these considerations are critical if we are to design more sustainable housing in Western Australia, and naturally expect this to be a key aspiration shared by the City of Bayswater. However, it appears the Council does not  support more sustainable, energy efficient homes, in contrast to state, federal and even global action to address the impact of the built environment upon our changing climate.

StreetElevation

Street elevation for proposed dwelling.

Additionally, it can be posited that situating the primary outdoor living area and lightweight solar pergola on the upper floor actually helps to reduce the overall bulk of the proposed development. This is in contrast to a more “bulky” two-storey elevation, similar to those already found in the locality. It is our opinion that this approach makes for a more positive contribution to the streetscape, as is supported by the planning officer’s original recommendation:

“Accordingly, the proposed development and the variations to the side setback and building height requirements of the R-Codes are considered to meet the relevant design principles of the R- Codes and will not unduly impact the amenity of the adjacent properties, and are therefore supported.”

Overlooking

In the planning officer’s original report, it states there was a “nil” response from the applicant in response to the neighbour’s concerns regarding overlooking. This is not quite correct – in discussions with the planning officer, we specifically asked if there were any overlooking concerns regarding the proposed development – we were advised there were no issues that needed to be addressed.

The following architectural drawing  illustrates potential areas of overlooking. With respect to the adjoining neighbour on Lot 70, the vast majority of “overlooking” falls within the primary street setback area; this region is otherwise clearly visible to vehicular traffic and pedestrians on the street.

SitePlan

Site plan for the proposed dwelling. The blue “cones” represent potential areas of overlooking. As can be seen, overlooking to Lot 70 falls within the front setback, which is otherwise  visible from the street.

The planning officer’s recommendation also includes the condition that:

“the approval will require suitable screening of the south-east elevation of the deck.”

In light of these two considerations, it is difficult to understand how an overlooking issue for the adjoining neighbour – real or perceived – can be substantiated.

With the proposed outdoor living location, another factor we considered is how this position provides both active and passive surveillance of the street. My clients and I believe this is an important streetscape and community safety benefit that encourages street activation and neighbour interaction, while concurrently being of benefit to the thermal performance and energy efficiency of the proposed dwelling.

Committee’s (Odd) Recommendation

In the committee meeting minutes, the committee cited the following reasons for rejecting the planning officer’s recommendation for approval:

  1. The proposal does not comply with the setbacks, building height and visual privacy requirements of the Residential Design Codes.
  2. The proposal is considered to have an undue impact on the amenity of the area.
  3. The proposal is considered to be inconsistent with the orderly and proper planning of the locality.

Regarding item 1, a common misunderstanding with the Residential Design Codes of Western Australia is that they only represent a prescriptive, “black and white”, “yes or no” list of rules and regulations that dictate acceptable development.

While the Codes include deemed to comply criteria, it also features provision for more qualitative, performance-based criteria by which a development can be assessed. These design principles are of equal weighting to the deemed to comply requirements; architects and other skilled building design professionals often work via these design principles, rather than adopt a “one size fits all”, lowest common denominator approach to building design and development.

While there are aspects of the proposed development that do not satisfy the deemed-to-comply criteria, great care and consideration has been taken to address these aspects via the performance-based design principles. In support of this, it should be noted that the original planning officer’s report states on two separate occasions that the proposed development is:

“considered to meet the relevant design principles of the R-Codes… and [is] therefore supported.”

At this point, it is also worth noting that there are 12 key scheme provisions where the design is considered to meet the deemed to comply requirements by the City of Bayswater, and only four where we are seeking to apply the design principles.

Thus, it is our considered position that the proposed development meets a combination of both the design principles and deemed to comply requirements of the Residential Design Codes, which is in turn supported by the planning officer’s original report.

Regarding items 2 & 3, and has been already outlined previously in relation to the adjoining neighbour’s comments, it is difficult to validate the claims that the proposed development has an undue impact on the amenity of the area, and is inconsistent with the orderly and proper planning of the locality.

Additionally:

  • There are no adverse overshadowing impacts to the adjoining neighbour – the proposed development satisfies the deemed to comply criteria for overshadowing under the Residential Design Codes.
  • Any real or perceived overlooking issues will be ameliorated by conditions already included in the planning officer’s original report, or occur on parts of adjoining property that are already clearly visible on the street.

To that end, points 2 and 3 appear to be highly subjective conclusions, that need to be substantiated or verified with respect to the Residential Design Codes and/or the planning policies of the City of Bayswater, if they are to be considered valid.

On the contrary, and equally as subjective, we believe the proposed development makes a positive contribution to the streetscape, has design merit, and can be considered a contemporary interpretation of vernacular building styles found in the locality. However, since important planning decisions should not be based solely upon subjective opinions or hearsay, we can also demonstrate that:

  1. The proposed development meets the design principles and deemed to comply requirements of the Residential Design Codes.
  2. To our knowledge, the proposed development is not otherwise prohibited by any of the City’s applicable planning policies.
  3. There are no adverse overshadowing impacts on the adjoining neighbour.
  4. Any potential or perceived overlooking concerns have been addressed in conditions accompanying the original recommendation for approval, or would otherwise occur due to proximity to the primary street.
  5. Careful consideration has been given the location and orientation of the proposed living and outdoor living areas to maximise solar passive design and minimise the need for artificial heating and cooling.

It is certainly hoped that the elected members of the City consider the interests of all of their constituents, not just those who happen to express an opposing view. I genuinely believe Peter & Susanne should be equally provided with the opportunity to build a home that:

  • prioritises more sustainable and eco-effective design outcomes;
  • has been designed to contribute to the amenity and character of the streetscape; and
  • has been independently assessed and is supported by an experienced and knowledgeable planning officer in the employment of the City of Bayswater.

It will be interesting to learn the outcome of tomorrow’s council meeting…

Comments

  1. Sid,

    #1 – you are dealing with the City of Bayswater. I am certain, as you sat in the chambers, you realised the demographic of those chosen to represent their constituents would have been somewhat ‘different’ to yours – regardless of what progressive people like the Bayswater planners agree or disagree with. Your argument would have addressed matters that did not resonate with that demographic of decision makers. Any deputation on the topic allows the officer’s recommendation to be debated and can run against you – someone should have spoken up in favour of the development.

    #2 – why did you wait 6 months? Why did you not apply for a SAT hearing under 249(1) – being that the time to determine had lapsed and is a deemed refusal? because;

    #3 – your planning argument is sound and has merit in that this continues the ideals of orderly and proper planning and set no undesirable precedent.

    #4 – “no” is the default answer in planning circles.

    I would suggest you engage councillors TODAY with an explanatory email and nominate to present your position tonight with a deputation addressing planning law – not fluff and padding and emotions.

    Good luck.
    A.

    • Hi Aaron,

      1. Yep. It’s interesting to observe how planning officer’s are much better at understanding and applying the design principles, though some elected members aren’t quite there yet.
      2. Was trying to play nicely.
      3. Thanks 🙂
      4. Seems that way.

      Going to the Council meeting tonight; the blog post is based on the letter I’ve sent to all elected members. Fingers crossed!

  2. You must speak tonight – do you intend to? You should have spoken at the first meeting. I disagree that it is uncommon to overturn a planning officer’s recommendation. That happens fairly easily if it is disputed. Good luck but speak up and follow process don’t excpect them to understand without you tryng to explain it. Ie speak up.

    • You’re right – I should have spoken at the first committee meeting. Was a bit naive and trusted in the process. Will be speaking tonight, and have already been in touch with some of the elected members. Thanks Clare!

  3. Blogging about DA refusal, that’s brave of you (planner’s are vindictive and have long memories). Regardless of the details of the R-Code variations this case very much highlight’s a fundamental problem with local government approving building works. As you stated in your post, there is a tendency to only look at the Deem-to-comply section of the R-Codes and dismiss arguments from the Design Principles column as “we don’t agree with that interpretation” and you are forced into a situation of either accepting their ruling or fighting it at SAT.

    SAT is a viable option for a large scale development or a patient and rich client who would prefer to win, but not really an option for most clients.

    In your case the fundamental problem I was mentioned is that you have worked with the professionally trained planner and arrived at an acceptable compromise and he/she has granted her recommendation for approval. Then a popularly elected official with no expertise and some bias, (as they are persuaded votes) has the final say.

    That being said my comments are about local government structure, and not relevant to your specific issue. I agree with Aaron, who has a reputation for getting past this sort of bureaucracy, you needed to control the meeting by presenting your POV and hoping planner’s, who want to keep their jobs, will stand up for their recommendation.

    • For the most part, I get along well with planners 🙂 Except for the odd exception, I generally find that town planners generally want to achieve the same things as me and my clients – good, eco-effective design outcomes – they sometimes just have a different way of looking at things to architects and building designers.

      I have a slightly different approach to development approvals, and prefer not to wave the SAT stick if I don’t have to 😉

  4. I have just returned from the Council meeting. It took about two hours before we got to the agenda item relating to us. After some discussion and questions to the Director of Planning, the councillors voted 9 to 1 to overturn the committee’s recommendation of refusal. A foreshadowed motion was then put forward to revert to the original planning officer’s recommendation for approval – the motion was carried 9 votes to 1. Time for a celebratory drink 🙂

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