Alcock and Town Of Claremont
[2013] WASAT 83
•6 JUNE 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ALCOCK and TOWN OF CLAREMONT [2013] WASAT 83
MEMBER: MS M CONNOR (MEMBER)
HEARD: 18 AND 19 MARCH 2013
DELIVERED : 6 JUNE 2013
FILE NO/S: DR 361 of 2012
BETWEEN: TROY ALCOCK
Applicant
AND
TOWN OF CLAREMONT
Respondent
Catchwords:
Town planning Development application Demolition of existing dwelling and construction of contemporary two storey dwelling Garage integrated within main built form of dwelling Vehicular access provided from primary street rather than rear laneway Whether discretion to approve proposed development Construction and interpretation of planning instrument Preliminary issue determinative of other identified issues Words and phrases: 'will not support', 'on site parking' and 'practical'
Legislation:
Planning and Development Act 2005 (WA), s 68(1)(b), s 252(1)
Residential Design Codes of Western Australia, cl 6.5.1, cl 6.5.4
Town of Claremont Town Planning Scheme No 3, cl 26, cl 26(3), cl 36, cl 76, cl 76(2)(a), cl 86, cl 86(2)
Result:
Application for review dismissed
Decision of the respondent affirmed
Summary of Tribunal's decision:
Mr Troy Alcock applied to the State Administrative Tribunal for review of the Town of Claremont's decision refusing planning approval for demolition of the existing dwelling and the construction of a new two storey dwelling at No 26 (Lot 96) Goldsmith Road, Claremont.
The following four issues were identified by the parties for determination in this matter.
1)What is the effect of cl 36(6) of the Town of Claremont Town Planning Scheme No 3? In particular:
i) Does cl 36(6) apply to on site parking that is attached to or within the dwelling, or does it apply only to 'parking' and/or 'outbuildings'?
ii) If cl 36(6) applies to the former, does its application mean the proposed development should be refused?
2)Does cl 6.5.4 of the Residential Design Codes of Western Australia apply, or has it been replaced by cl 36(6) of the Town of Claremont Town Planning Scheme No 3? If cl 6.5.4 of the Residential Design Codes of Western Australia applies, does the proposed development conform?
3)Is it possible to be satisfied that the appearance of the building will not adversely affect the character or amenity of the locality and will not clash in harmony with the appearance of adjoining or neighbouring buildings, as required by cl 76(2)(a) of the Town of Claremont Town Planning Scheme No 3?
4)Does the proposed development comply with the Town of Claremont Local Planning Policy 107 Retention of Residential Character, having regard in particular to:
i) the objective of the policy to ensure that new two storey single residential development is compatible with the character, form and scale of existing residential development in the locality, and harmonises with the streetscape; and
ii) the policy requirement for a single residence of two storeys to be designed so as to appear as a predominantly single storey house as viewed from the primary street where the surrounding development in the immediate locality is predominantly single storey?
The Tribunal concluded that, on its proper interpretation, construing cl 36(6) in the context of the other provisions of the Town of Claremont Town Planning Scheme No 3 and in a 'practical and commonsense, and not an overly technical way, and in a fashion which will best achieve [its] evident purpose' in a planning context, the proposed development was not capable of approval, as it incorporated on site parking at the front of the property where a practical alternative vehicular access point exists.
As to issue 2, given that cl 26(3) of the Town of Claremont Town Planning Scheme No 3 states that '[u]nless otherwise provided for in the Scheme, the development of land … shall conform to the provisions of the Codes', cl 36(6) of the Town of Claremont Town Planning Scheme No 3, which is a specific provision relating to parking and access, prevails over the provisions of the Residential Design Codes of Western Australia.
In light of the Tribunal's determination in relation to issues 1 and 2, the Tribunal did not consider and express findings in relation to issues 3 and 4, as the design merits and other issues did not arise for determination. Furthermore, there was no benefit in the Tribunal making any findings as the design of a development which conformed with cl 36(6) of the Town of Claremont Town Planning Scheme No 3 would be likely to be different.
Category: B
Representation:
Counsel:
Applicant: Mr KM Pettit SC
Respondent: Mr C Slarke
Solicitors:
Applicant: Greg Rowe & Associates (Town Planners)
Respondent: McLeods
Case(s) referred to in decision(s):
AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694
Chiefari v Brisbane City Council [2005] QPELR 500
Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Franco and City of Nedlands [2012] WASAT 53
GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Purser & Anor and Town of Claremont [2005] WASAT 43
Sharpe v Town of Vincent [2010] WASC 391
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Troy Alcock (applicant) made application to the Town of Claremont (respondent, Council or Town) on 15 June 2012 for the demolition of the existing dwelling and construction of a new two storey dwelling at No 26 (Lot 96) Goldsmith Road, Claremont (subject land).
At its meeting of 16 October 2012, the Council received a report from its planning officers recommending approval for the proposed development subject to eight conditions and nine advice notes. The Council, at that meeting, refused the application, stating the following reasons for refusal:
1.The provision of vehicular access from Goldsmith Road does not comply with Clause 36(6) of the Town of Claremont Town Planning Scheme No 3 in that the site abuts a practical alternative vehicle access point (Raven Lane) which is not being utilised; and
2.Utilising the primary street for vehicular access when an alternative vehicle access point exists (Raven Lane) is inconsistent with orderly and proper planning in the Town of Claremont.
The Council also advised that '[it] considers that the rear access provided to and from the Right of Way (Raven Lane) is safe and therefore practical access is available to the property'.
On 2 November 2012, the applicant made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
Subject land
The subject land is more particularly described as part Lot 96 on Plan 1511, being the land contained in Certificate of Title Volume 488 Folio 194, and is 1012 m2 in area. The lot is rectangular in shape, with an approximate frontage of 20 metres and a depth of 50 metres.
The subject land is located on the south side of Goldsmith Road, and a right of way, known as Raven Lane, abuts the rear boundary of the subject land. Raven Lane is approximately 3.7 metres wide, is paved and drained, and provides a link between Parker Road and Hackett Road. Several properties within the street block bounded by Goldsmith, Stone, Watkins and Loton Roads enjoy vehicular access onto Raven Lane.
There is presently a single storey dwelling constructed on the subject land that has an existing driveway and crossover located in the north‑west corner of the lot. There is also a significant oak tree located towards the rear of the subject land.
The Tribunal had the benefit of a view of the subject land, surrounding properties and laneways, accompanied by the parties, their counsel and the experts.
Proposal
The proposed development involves the construction of a contemporary two storey dwelling, which generally occupies the same footprint as the existing dwelling on the land. The plans show that the main (two storey) section of the front elevation is set back 9.0 metres from the northern front boundary (Goldsmith Street). The side setbacks of the two storey walls from the eastern and western side boundaries are 2.3 metres and 1.7 metres respectively. The roof is effectively flat, with the surface of the roof screened by a boxed parapet fasçia. The overall height of the new dwelling is proposed to be 150 millimetres higher than the roof ridge of the existing dwelling.
The majority of living/habitable areas are located on the ground floor, with all bedrooms located on the first floor. The garage is incorporated into the design of the dwelling and, although it appears as a double bay garage from the street, it provides for three vehicles (two tandem bays) and a workspace/storage area. Vehicular access to the garage is proposed via a new driveway and crossover located in the north‑east corner of the subject land, off Goldsmith Road.
Planning framework
The subject land is zoned Residential with a density coding of R15/R20 under the Town of Claremont Town Planning Scheme No 3 (TPS 3 or Scheme). A 'Dwelling (self‑contained)' is a 'P' (permitted) use in the Residential zone.
The main provisions contained in TPS 3 that are relevant to the determination of this matter are:
•clause 26 ‑ Residential Development: Residential Planning Codes (Planning Codes) (in particular cl 6.5.4 of the Planning Codes);
•clause 36 ‑ Outbuilding, Garages, Carports & Pergolas;
•clause 46 ‑ Residential Zone Objectives;
•clause 76 ‑ Design and Construction; and
•clause 86 ‑ Determination of Application.
Other policies and guidelines relied on by the parties included:
•Town of Claremont Local Planning Policy 107 ‑ Retention of Residential Character (LPP 107);
•Liveable Neighbourhoods;
•Western Australian Planning Commission (WAPC) Designing Out Crimes Planning Guidelines (June 2006); and
•WAPC Planning Bulletin No 33 ‑ Rights of Way or Laneways in established Areas.
Issues
The following principal issues arise for determination in relation to this matter:
1)What is the effect of cl 36(6) of TPS 3? In particular:
(i)Does clause 36(6) apply to on-site parking that is attached to or within the dwelling, or does it apply only to 'parking' and/or 'outbuildings'?
(ii)If cl 36(6) applies to the former, does its application mean the proposed development should be refused?
2)Does cl 6.5.4 of the Residential Design Codes of Western Australia (Codes) apply, or has it been replaced by cl 36(6) of TPS 3? If cl 6.5.4 of the Codes applies, does the proposed development conform?
3)Is it possible to be satisfied that 'the appearance of the building will not adversely affect the character or amenity of the locality and will not clash in harmony with the appearance of adjoining or neighbouring buildings', as required by cl 76(2)(a) of the Scheme?
4)Does the proposed development comply with LPP 107, having regard in particular to:
i)the objective of the policy to ensure that new two storey single residential development is compatible with the character, form and scale of existing residential development in the locality, and harmonises with the streetscape; and
ii)the policy requirement for a single residence of two storeys to be designed so as to appear as a predominantly single storey house as viewed from the primary street where the surrounding development in the immediate locality is predominantly single storey?
The first issue identified is a determinative preliminary issue and, as such, the findings on that issue will determine whether the remaining issues will need to be addressed.
What is the effect of cl 36(6) of TPS 3?
Clause 36(6) of TPS 3 provides:
Council will not support the provision of on site parking at the front of a property where a practical alternative vehicular access point exists, such as to a secondary street, rear laneway or similar. To enable rear laneways to be utilised, Council may consider a reduced front setback for the dwelling where rear private open space is significantly compromised, under the provisions of Clause 1.5.8(a) of the Residential [Design] Codes relating to the averaging of the front setback distance.
The dispute in relation to cl 36(6) largely relates to the interpretation of the first sentence of the provision. In short, the respondent argues the following three points. Firstly, that the clause does not contain any discretion to approve on site parking where a practical alternative vehicular access point exists. Secondly, that 'on site parking' includes within its meaning the provision of a garage, carport or uncovered parking area which is accessed from the primary street frontage. Thirdly, that a 'practical alternative vehicular access point' requires merely the capacity of access and nothing more.
The respondent contends that the proposed development involves the provision of on site parking at the front of the property and, as a practical alternative vehicular access exists, namely from Raven Lane, there is no discretion to approve the provision of on site parking at the front of the property. Consequently, the proposed development must be refused.
The applicant argues that on its proper interpretation, cl 36(6) of the Scheme precludes parking either in a hard stand, or in a carport or a garage separate from the dwelling (outbuildings), in the area between the dwelling and the street, but does not include a garage that forms part of the dwelling, and therefore does not apply to the proposed development. The applicant argues, alternatively, that if cl 36(6) of TPS 3 applies to the proposed garage, then the construction of a rear garage with laneway access is not 'practical' due to certain matters relating to the subject land.
The Tribunal will discuss each of these points in turn.
Discretion or no discretion? ‑ 'will not support'
Mr Slarke, counsel for the respondent, cites Franco and City of Nedlands [2012] WASAT 53 at [17] ‑ [23] (Franco) and argues that, in this case, the words of cl 36(6) of TPS 3 bear their literal or grammatical meaning.
Although Mr Slarke acknowledges that the words 'will not support' are an unusual formulation for a town planning scheme, he submits that the 'words are not unclear in their meaning' and that there is no discretion built into the phrase. He submits that the only consideration in the provision is whether a practical alternative vehicular access point exists, which of itself is not a discretionary matter, but rather a question of fact, or perhaps a mixed question of fact and law.
Mr Slarke also refers to the Macquarie Dictionary (5th ed, 2009) (Macquarie Dictionary) at 1654 for a definition of 'support', submitting that the relevant definition in this context is definition 6, which reads:
to uphold (a person, cause, policy, etc.) by aid or countenance; back; second (efforts, aims, etc.)
Mr Slarke submits that no matter which of the words of this definition is applied, the outcome is the same; that being that there is no discretion to approve the provision of on site parking at the front of a property where a practical alternative vehicular access point exists.
In considering whether a more liberal approach to the interpretation of the provision could be adopted to provide for an element of discretion, Mr Slarke addresses the following three circumstances articulated in Franco at [23]:
1)where there are obvious drafting errors, and mistakes of that nature;
2)the application of the orthodox 'golden rule' approach, which is to avoid the effect of literal or grammatical absurdity; and
3)the application of a modern approach which requires reference to purpose and context.
Mr Slarke submits that there are no obvious drafting errors or mistakes of that nature in this case; no obvious absurdity which needs to be corrected in the operation of the clause; and nothing in the purpose or context of the Scheme that indicates it is necessary to read in some discretionary power. In fact, he submits that the circumstances are quite the contrary, and argues that part of the purpose of the clause is, in fact, to remove any element of discretion, which accords with the tenor of a town planning scheme that does not allow for standards and requirements to be varied: see Purser & Anor and Town of Claremont [2005] WASAT 43. He also submits that the second sentence of the clause is relevant to the purpose and context, in that it reinforces the lack of discretion with respect to the provision of alternative vehicular access by providing discretion to vary the front setback requirements where rear private open space is significantly compromised.
Mr Pettit SC, senior counsel for the applicant, submits that the language 'will not support' used in cl 36(6) of the Scheme suggests a preference rather than a mandatory requirement, and argues that, in any event, cl 86(2) of the Scheme imports a discretion. Clause 86(2) provides that '[t]he Council having regard to' a number of specified matters, one of which includes 'any matter which it is required by the Scheme to consider', may refuse to approve any application for planning approval, and provides that where Council grants its approval it may do so subject to conditions.
The Tribunal considers that the phrase 'will not support' in cl 36(6) of the Scheme does not provide discretion for the following reasons.
Under s 68(1)(b) of the PD Act, the Scheme 'has effect as if it were enacted by this Act'. Thus, the meaning of cl 36(6) of the Scheme is to be determined as a matter of legislative interpretation, although in a town planning context.
As the High Court of Australia said in AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694 at [10]:
What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes. (citations omitted)
Moreover, as Wilson J held in the Queensland Planning and Environment Court in Chiefari v Brisbane City Council [2005] QPELR 500 (Chiefari) at 502, the provisions of a planning scheme:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
The Tribunal agrees with Mr Slarke's submissions that there are no obvious drafting errors or mistakes and no obvious absurdity which needs to be corrected in the operation of the clause. However, the expression 'will not support' is extremely unusual in planning schemes and, except for cl 36(7) which reads in the positive, the expression is not used elsewhere in the Scheme.
The clause does not expressly state that it is a prohibition. Furthermore, the language is of the kind that is more readily found in policy where there is an element of discretion. However, cl 36(6) is part of a planning scheme, and therefore legislation not policy, and the planning intention of the clause is clearly to preclude on site parking at the front of the property where there is a practical alternative vehicular access point. The clause provides that the decision-maker will not uphold, countenance or back on site parking at the front of a property where a practical alternative exists. It is expressed in mandatory terms. The ordinary meaning of the words is consistent with the planning purpose.
Further, the Tribunal does not consider that cl 86(2) of TPS 3 provides the general discretion suggested by Mr Pettit. Clearly, cl 86(2) is subject to the specific provision of cl 36(6) of the Scheme and therefore 'cannot be exercised to do that which is the subject of the special power': see Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15 at [53], which refers to Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678.
On its proper interpretation, the Scheme therefore precludes approval of an application involving the provision of on site parking at the front of the property where a practical alternative vehicular access point exists.
What does 'on site parking at the front of a property' import?
The respondent contends that the phrase 'on site parking at the front of a property' includes within its meaning the provision of a garage, carport or uncovered parking area which is accessed from the primary street frontage.
Mr Pettit argues that the phrase 'parking at the front of a property' is an expression that does not naturally include a construction that is part of the dwelling. He submits that the proper interpretation of cl 36(6) of TPS 3 refers to parking either in a hard stand, or a carport or garage separate from the dwelling (outbuildings), in the area between the dwelling and the street, but does not include a garage integrated within the main built form of the dwelling, as is the case in this application. He submits that there are cogent reasons, such as visual permeability, streetscape, surveillance, safety and amenity, as to why the Town would want to place controls on outbuildings and parking in the front setback area, but asserts that cl 36 of the Scheme does not deal with front access, driveways and crossovers.
The expression 'on site parking' is a 'term of art' recognised in the Codes that is used to refer to the provision of car parking anywhere on site rather than the built form in which the car parking is provided: see cl 6.5.1 of the Codes. The Tribunal considers that the use of the expression in cl 36(6) of TPS 3 is reflective of this intent and refers to all forms of car parking on site.
Further, contrary to Mr Pettit's argument, parking and access are inextricably linked, and the effect of cl 36(6) of the Scheme is to preclude not just parking at the front of the property where a practical alternative access point exists, but any vehicular access point and driveway at the front of the property. Given this clear planning intent, it is not logical to exclude garages that are integrated within the main built form of the dwelling from the definition of 'on site parking'.
In any event, the scenario as described by the applicant (garage integrated within the built form of a new dwelling) is captured under cl 36(9) of the Scheme which provides that '[w]here an application is received for a new dwelling, any garage … incorporated in that application shall comply with the applicable provisions [of cl 36]'. The applicant accepts that a garage separate from a dwelling would be subject to the provisions of cl 36(6) of TPS 3. Clause 36(9) of the Scheme does not distinguish between garages separate from or integrated into the new dwelling and, as such, there is no reason to find that cl 36(6) of the Scheme would not be equally applicable to an application that integrates a garage into a new dwelling.
What considerations are relevant to whether 'a practical alternative vehicular access point' exists?
The respondent contended that a practical alternative vehicular point to the subject land exists, namely from Raven Lane, and that cl 36(6) of TPS 3 requires access to be taken from that point.
The applicant argues that if cl 36(6) of TPS 3 applies to the proposed garage, then the construction of a rear garage for laneway access is not practical and would significantly compromise the open space on the lot for the purpose of cl 36(6).
The applicant does not dispute that access to the subject land is possible from Raven Lane, but rather contends that matters internal to the lot affect the practicality of using such access. The applicant submits that matters internal to the lot are relevant to the issue of practicality for the following four reasons. Firstly, each application must be considered on its merits, and 'practical' may vary from case to case. In this instance, what is considered practical for one person does not mean practical for all persons backing on to Raven Lane. Secondly, the discretion contained in cl 36(6) of TPS 3 to vary the front setback if the rear private open space is significantly compromised suggests that matters internal to the site are a relevant consideration. Thirdly, cl 36(6) of the Scheme could not have been intended to elevate rear access to a determinative consideration in respect to design and site planning. Fourthly, consideration should be given to the cumulative inconveniences on site in order to assess the practicality of the alternative vehicular access point.
Mr Alcock in his evidence identified the following reasons he considers rear access is not practical in the circumstances of this case:
•the provision of a three bay garage at the rear of the lot would significantly reduce the recreational space available and compromise the intended use of the backyard for open space;
•the location of a garage at the rear of the lot would compromise the safety of his family, as the laneway does not have clear sight lines down the lane; it is narrow and of insufficient width to provide for passing vehicles; there are no sideways escape routes; it has poor surveillance and no lighting. He also considers that a garage abutting the laneway will further reduce surveillance of the laneway, as it will obscure vision of the laneway from the dwelling;
•the remoteness of the garage presents difficulties of safe access at night as well as compromising the security of his personal and real property;
•a rear garage would cause significant inconvenience, given the separation distance between the garage and the dwelling; and
•it would constitute an inefficient use of the lot.
Mr Alcock also undertook a survey of access points for lots within the immediate vicinity of the subject land and the surrounding locality to show current access arrangements. This evidence, confirmed by the view, shows that there are various access arrangements for lots within this locality, including sole access to the street, sole access to the laneway, and dual access to both street and laneway. He suggests that an important fact gained from the assessment is 'that there is no one on Goldsmith Road that uses Raven Lane exclusively'. The survey also reveals that in the surrounding locality, 35 properties have vehicular access from the rear laneways of Frogmouth Lane and Raven Lane and that 11 of these properties have their sole vehicular access from the laneway. Another relevant factor that should be noted is that the survey also includes properties within the City of Nedlands, the development of which would be subject to different statutory and policy provisions.
Mr Sean Fairfoul, a town planning consultant who gave evidence on behalf of the applicant, considers the use of Raven Lane to be impractical in this instance, raising issues relating to the trafficable limitations of the existing lane, safety and security concerns, and the resultant inefficient use of the rear yard if access is required from the rear lane. However, in cross-examination, Mr Fairfoul accepted that the numerous examples of dwellings taking rear access from laneways in the locality demonstrates that the laneways provide an access point, although he was reluctant to comment on the practicality of such access. When questioned on the practicality of the existing rear access points to No 23 and No 25 Goldsmith Road (lots located on the northern side of Goldsmith Road with a sole access point from Frogmouth Lane), Mr Fairfoul did not consider the laneway to be an ideal vehicular access point, and on the issue of practicality of those access points, he was unsure of the landowners' sense of practicality and preferences.
The question which arises under cl 36(6) of TPS 3 is whether 'a practical alternative vehicular access point exists'. Mr Pettit is correct in saying that each application must be considered on its merits and that matters peculiar to the subject land are a relevant consideration in the determination of the application: see Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522. However, the matters of 'practicality' identified by the applicant arise largely from personal preferences and inconveniences that may be experienced if access is required from Raven Lane. They do not show that access off Raven Lane is not a practical alternative vehicular access point.
'Practical' is not defined in TPS 3, and in accordance with cl 9(3) of TPS 3, the word is therefore to bear its 'normal and common meaning'. The most relevant definition of the adjective 'practical' in the Macquarie Dictionary (definition 3) at 1305 is as follows:
relating to or connected with the ordinary activities, business or work of the world.
Clearly, Raven Lane is capable of providing an alternative access point to the subject land, as evidenced by the use of the lane by other properties in the street block. The applicant did not argue that it was not possible to take access, only that the requirement to do so was inconvenient to the landowner in this instance. Mr Alcock also accepted under cross‑examination that with a different design, practical access could be achieved from Raven Lane. While he was concerned about the safety of using the laneway, it and similar laneways are used by other properties for vehicular access. No evidence was presented to show that the use of the laneway or similar laneways is, in fact, unsafe.
Having regard to the ordinary meaning of 'practical', the personal preferences of the landowner as to whether or not access is taken from the laneway cannot preclude it from being a practical alternative access point.
Further, personal preferences of landowners should not defeat a broader public interest in orderly and proper planning. As the Tribunal articulated in GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 at [67]:
Planning law 'is concerned with the use of land ‑ not with the identity of the user': per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. Development approval is not personal to an applicant for approval, but rather runs with the land. …
Similarly, Professor Leslie Stein said in Principles of Planning Law (Oxford University Press, 2008) at 172:
Perhaps the best reason for excluding personal considerations is that '[i]f the development proposed entails works of a permanent kind, it should be borne in mind that it will remain long after the personal circumstances of the applicant have ceased to be material' [Tameside Metropolitan Borough Council v Secretary of State [1996] EWHC Admin 135]. This is consistent with the planning consent being a right that follows the land and not the applicant.
Jenkins J also observed in Sharpe v Town of Vincent [2010] WASC 391 at 125 that 'planning laws often fetter a landowner's wish and freedom to develop their property in a particular way'.
The Tribunal does not say that matters internal to the lot are not relevant considerations; in fact, there may be instances where such matters will have a significant bearing on whether there is a practical alternative access point. It is only those matters personal to the landowners' preferences that are not relevant considerations.
Further, contrary to Mr Pettit's argument about the intent of cl 36(6) of TPS 3 in respect to design, the Tribunal considers that the very purpose of cl 36(6) is to affect design and site layout where a practical alternative access point exists. It explicitly precludes on site parking at the front of the property and implicitly excludes driveways and crossovers at the front of the property where a practical alternative access point exists. This must necessarily affect the design and site layout of any development on site.
Conclusion
The Tribunal concludes that, on its proper interpretation, construing cl 36(6) in the context of the other provisions of the Scheme and in a 'practical and commonsense, and not an overly technical way, and in a fashion which will best achieve [its] evident purpose' in a planning context, the proposed development is not capable of approval, as it incorporates on site parking at the front of the property where a practical alternative access point exists.
As to issue 2, given that cl 26(3) of TPS 3 states that '[u]nless otherwise provided for in the Scheme, the development of land … shall conform to the provisions of the Codes', cl 36(6) of the Scheme, which is a specific provision relating to parking and access, prevails over the provisions of the Codes.
In light of the Tribunal's determination in relation to issues 1 and 2, the Tribunal has not considered and expressed findings in relation to issues 3 and 4, as the design merits and other issues do not arise for determination. Furthermore, there would be no benefit in the Tribunal making any findings as the design of a development which conforms with cl 36(6) of the Scheme is likely to be different.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
3
8
3