Conflicting Advice (Perth battleaxe sub-division)

Hi guys,

Have been reading many a propertychat posts for some time now, educating myself as I’ve always wanted to develop my property. Finally decided to get the ball rolling this year and recently been in contact with a number of builders, surveyors, council as well as utility providers. This is my first ever subdivision and it's quite daunting!

I have an 885m2 (R20) block in Perth, which (the previous owner prior to selling), applied and received WAPC Conditional Approval for a retain and build, battleaxe property - taking into account the 5% variation rule.

WAPC allowed for 2 Green Titles (following all clearances being undertaken). My understanding is that survey-strata was considered, but Green Title granted. Realise there’s a lot of discussion around the merits of either, and the headworks costs involved etc for sub-dividing. For now though, I’m stuck with Green Title which WAPC conditionally granted, so will work on that basis.

I’ve been given conflicting advice from a few parties regarding necessary setbacks, and wanted to put it out there to the PC community, if they’ve experienced anything similar and any advice.

See diagram attached, and specifically the area highlighted in green - access leg and 2 points circled in red. FYI
- 6m with the ‘lip’ (bottom right) accessway, so pretty much 4m running down the RHS boundary
- The distance from the existing house (to be retained) to the boundary is only 0.35m.

My concern relates to the WAPC Condition, which is fairly stock standard:
All buildings having the necessary clearance from the new boundaries as required under the relevant legislation including the Local Planning Scheme and Building Regulations of Australia. (Local Government).

My conflicting advice has been as such:
1. 0.35m is not enough of a setback for the existing dwelling to the green title boundary. Needs to be at least 1m for non-habitable room (there is a kitchen and laundry along the RHS of the house), or 1.5m for bedrooms. Also, likely the eaves would overhang as well. Local council won’t clear this condition unless modifications are undertaken to the existing property to comply. This is because it is Green Title, had the WAPC application been survey strata, no problems at all.

2. You’ll get clearance for that condition from Local Council no problems, as WAPC have already seen the plans and agreed to it during the sub-division process.

Based on my reading of the r-codes, it seems to be Advice 1 is correct, however is there something I am missing? Advice 2 came from multiple sources - is this really the case?

TLDR: Is there any instance where Local Council would approve a setback of 0.35m from a Green Title boundary, because WAPC being the higher authority have already endorsed the proposed plan during the sub-division application?

Appreciate the collective expertise of propertychat members!

 

Hi there

Whats your plan with them? and what area?

Easiest way to go is reapply for survey strata, saves the 4m driveway hassle which solves your set back issue and saves the dollars going green title. (Unless the area has a greater premium for green title).

Have you gone through your councils TPS to be clear what their setbacks are? Some may allow something different for a retain and build.

I would say (2) is incorrect as WAPC approve the land allotments and up to council to approve the house retaining and the boundaries etc.

All this should have been figured out and worked around by the previous owner before lodging the application to ensure it would all work and avoid unnecessary costs Now it might cost you (the new owner) another application fee and 3 months of extra time

 

1. What does council say?

2. Could the wall be assessed as s boundary wall? I can't remember the maximum setback but I recall that a boundary wall does not have to be exactly on the boundary. Some leeway is granted

 

This is the part I was thinking of in the Rcodes. Sorry I don't have time to reformat

C3.2 Walls may be built up to a lot boundary behind the street setback (specified
in Table 1 and in accordance with clauses 5.1.2, 5.2.1 and 5.2.2), within the
following limits and subject to the overshadowing provisions of clause 5.4.2
and Figure Series 11
:
i.where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension;
ii.in areas coded R20 and R25,walls not higher than 3.5m with an average of
3m or less, up to a maximum length of the greater of 9m or one-third
the length of the balance of the lot boundary behind the front setback , to
one side boundary only;
iii. in areas coded R30 and higher, walls not higher than 3.5m with an average
of 3m or less, for two-thirds the length of the balance of the lot boundary behind the front
setback , to one side boundary only; or
iv. where both the subject site and the affected adjoining site are created in a plan of subdivision submitted concurrently with the development application.

C3.3 Where the subject site and an affected adjoining site are subject to a different
density codes, in accordance with clause 5.1.3 C3.2, the length and height of
the boundary wall on the boundary between them is determined by reference
to the lower density code.

Note: The term ‘up to a lot boundary’ means a wall, on or less than 600mm, from any lot boundary, other than a street boundary

The note is the important part. I think you may comply with this provision provided that you meet the rest of the criteria outlined above.

 

A boundary wall is any wall less than 500mm from the boundary but it would need to have no doors and any windows would need to be replaced with glass blocks. Would that be possible?

 

Thanks all - great feedback I've been taking on board. In response to your questions...

@HD_ACE
The property is in City of Belmont. My plan was to retain the front, get some rental income, and undertake works to have titles issued - either selloff the land or build then sell off a house and land at the back. I think the previous owner just underwent the WAPC application to help sell the property, so between SS or GT, might have just ticked GT. Knowing what I know now, I should have done more due diligence

@Perthguy
I am still awaiting their follow-up feedback from council. I haven't found anything in their LPS, other than it referring back to the r-codes 5.3.3.

Hadn't noticed that 'note', if it could be assessed as a boundary wall:
iv. where both the subject site and the affected adjoining site are created in a plan of subdivision submitted concurrently with the development application.
- Guess I'd also need to have a DA and building plans in place? Am I interpreting this correctly that if were looking to sub-divide and just sell the land, this condition wouldn't be fulfilled, so the above wouldn't apply in my case?

@Westminster
At present there's a laundry (with unopenable window) on that side as well as a kitchen (openable window). Not sure whether it's possible to have a non-openable window/glass blocks for the kitchen. The way it's built there's no where else I could put in a new window on another wall if I wanted to. I'm thinking that even if it were to be considered a boundary wall, there'd still be rectification works required (if at all possible).

Notwitstanding all those above (even if they can be rectified), the eaves would likely still hang over as well. Haven't been able to find anything in the codes, or precedents that allow that

---

Gah, this sub-division process is so tough!

If it's just not possible without major rectifications to the existing house, my options now are to
- demolish the front house altogether, undertake the headworks and get 2 Green titles (most of the original conditions would be fulfilled/moot). The fibro house is (annoyingly) at that mid-point being too good to just demolish, but still, would need some upgrades to be marketable (if it were to be retained and sold).

- go back to WAPC and try for a SS. In which case my question would be:
1. Would it be better to submit the application now (although there's still time left on the original Green Title conditional approval). If they've already approved Green Title previously, more likely they'll approve SS?
2. Wait for the original approval to lapse (later in 2018), and then try the SS. I was never in any rush to sub-divide (market is not too hot in Belmont atm), but thought I should start this year given the original ruling expires next year.

 

My dad purchased a survey strata lot where the eaves hang over and it's a registered easement on the title

 

Which surveyors have you talked to about this? Who was the original surveyor who lodged it and what did they say?

I would
a. go back to original surveyor as they lodged it and would have included extra information in the lodge as to how/why it complies
b. talk to local council
c. THEN decide on options

 

@Kannenfeld my reading is that it is i or ii or iii etc. So you don't need to satisfy iv if you satisfy iii, for example

 

Thanks all - appreciate the feedback.

@Westminster - I did (try to) talk to the original surveyor engaged by the previous owner. Really surprised that they barely even wanted to talk, unless I signed with them on the dotted line. Didn't even ask them for specifics, just general. Actually had other surveyors much more willing to help and it wasn't about pushing to sign (makes me more willing to engage them for the project!).

I had another reading of the r-codes, and it seems (if I'm understanding correctly) that 'unhinged windows' aren't considered a major openings. So, so long as my bathroom and laundry windows sils are 1.6m or higher, I might be okay. [Still to figure out and check the eaves, whether they overhang].

Question if anyone has experienced/has knowledge the same, the 1.6m window sill requirement, is that measured to the window sil from within the house, or from outside the house? Mine should be above 1.6m from outside (as its built on stumps), but not sure about inside - haven't been able to get in to measure.

 

The R-Codes say:

are glazed in an obscure material and are not able to be opened; or have a sill height not less than 1.6m above floor level.​

Note the use of "or". Although in this context I find that use a bit confusing. In any case, I believe that floor level would refer to the internal.

However, if the windows are glazed in an obscure material and are not able to be opened then I don't think they would be considered as major openings.

 

If I were providing advice it would be along the lines of point 2. City of Belmont and WAPC have already inherently approved the reduced setback of 0.35m as part of the subdivision as they would've assessed it as part of the application and resolved to approve it. It is just the BCA that you will need to comply with which may require glass blocks/bricking in the windows as mentioned by others but that is more to comply with fire separation requirements under the BCA, not R-Codes/TPS rules. SS/GT wouldn't make much difference IMO as the boundary is still the boundary and would be subject to the same BCA requirements. there's also the risk (albeit very unlikely) that WAPC wont approve the 5% variation on a SS second time around for some reason.

Important to remember is legally everything in the R-Codes 'acceptable development criteria' can be varied - it's not all hard and fast rules, there is discretion with all of it, and in this case discretion has been applied by approving the reduced setback. Just need to deal with BCA and so a building surveyor would be the best person to speak to I think - City of Belmont have a team of them so go hit them up for free as a starting point.

FWIW, the major opening/1.6m sill height is measured from FFL so internal.