Anderson and City of Subiaco
[2005] WASAT 332
•13 DECEMBER 2005
ANDERSON and CITY OF SUBIACO [2005] WASAT 332
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 332 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:490/2005 | 16 SEPTEMBER 2005 | |
| Coram: | MR J JORDAN (MEMBER) | 13/12/05 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHELE ANDERSON CITY OF SUBIACO |
Catchwords: | Planning approval of single house Freestanding garage in front setback Condition requiring garage to be deleted Application of policy Streetscape Local character Application of Residential Design Codes |
Legislation: | City of Subiaco Town Planning Scheme No 4 (March 2001) |
Case References: | Nil Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent to impose conditionn (a) on the approval of the development at 21 Rosalie Street, Shenton Park dated 2 June 2005 is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : ANDERSON and CITY OF SUBIACO [2005] WASAT 332 MEMBER : MR J JORDAN (MEMBER) HEARD : 16 SEPTEMBER 2005 DELIVERED : 13 DECEMBER 2005 FILE NO/S : DR 490 of 2005 BETWEEN : MICHELE ANDERSON
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Planning approval of single house Freestanding garage in front setback Condition requiring garage to be deleted Application of policy Streetscape Local character Application of Residential Design Codes
Legislation:
City of Subiaco Town Planning Scheme No 4 (March 2001)
(Page 2)
Result:
Application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr T Anderson
Respondent : Mr M Casselton
Solicitors:
Applicant : Agent
Respondent : Agent
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Mrs Michele Anderson applied to the City of Subiaco for approval to build a two storey single house at No 21 Rosalie Street, Shenton Park. The proposed development included a double garage in the front setback side on to the street.
2 The City approved the house but not the garage. The City considers the garage would detract from the streetscape and would further encourage other garages in front setbacks further eroding the quality of the streetscape and this would be in conflict with the intention of its policies on setbacks and streetscapes.
3 The applicant says the character of the streetscape is established by the parapet wall of the shop two lots to the north, the high front boundary wall adjoining and the two garages with reduced setbacks seven lots to the south. Other houses have carports in the front setback. The applicant says the garage is of residential scale and character from the street and is preferable to either garage doors fronting the street or an open carport which exposes cars and domestic clutter to the view.
4 The respondent has adopted policies that address streetscapes and these do not favour a solid structure in the front setback. On the evidence, the Tribunal does not consider that another solid construction in the front setback of a house in Rosalie Street will contribute positively to the streetscape. There is nothing to differentiate this development as one for which the policies should be set aside.
5 The Tribunal has therefore determined that the development of the proposed garage is not to be supported.
Application
6 This is an application by Mrs Michele Anderson (applicant) for review of the decision by the City of Subiaco (respondent) to impose a condition deleting a garage in the front setback when granting planning approval for the development of a two storey single house at No 21 (Lot 13) Rosalie Street, Shenton Park (subject land).
The subject land and the street
7 The subject land is a vacant lot 15.25 metres wide and 42.81 metres deep, with an area of 652.8 square metres. It is on the west side of
(Page 4)
- Rosalie Street three lots south of the corner with Nicholson Road. Rosalie Street extends south to Keightley Road and then to Onslow Road.
8 At the northern end of the street, on the west side, is a liquor store facing Nicholson Road. The store has a parapet wall extending along its side, Rosalie Street, boundary, to within 1.5 metres of the rear boundary. In this wall are three roller doors and the verge is bituminised for parking perpendicular to the kerb. A speed hump has been built in the road at the southern end of the liquor store lot. The next lot to the south of the store, No 17, has a 2.0 metre high front boundary wall. Next is the subject land. Approximately 100 metres to the south is the corner lot with a house facing Keightley Road and a side boundary to Rosalie Street. Behind this house is a garage with a parapet wall on the rear boundary and the roller door on the Rosalie Street boundary. Adjoining this garage is No 53 Rosalie Street, seven lots to the south of the subject land, with a side on garage in the front setback and a parapet wall abutting the garage on the corner lot. The setback to the garage at No 53 appears to be about 1.5 metres. The houses in between these two ends of the street block have garden or a carport in the front setback. Houses in the street do not have a rear rightofway and so access to parking is from the front.
9 The parties advised that the lot adjoining to the north between the subject land and the liquor store has been subdivided into two lots, each with a frontage of 7.5 metres. Both parties expect the existing house that straddles the boundary to be demolished and two new houses built.
10 The eastern side of Rosalie Street comprises single houses on residential lots with garden or a carport in the front setback.
Proposed development and the condition
11 The application before the respondent was for a two storey house with cellar set back 11.354 metres from the Rosalie Street frontage, 1.2 metres from the south boundary and 1.5 metres from the north boundary. A freestanding double garage is proposed in the front setback. The garage has a rear parapet wall on the northern side boundary and a side wall facing the street. The garage doors face south and vehicles would enter the front yard and turn in front of the house into the garage.
12 As viewed from the street, the side wall of the garage is 6.25 metres wide, with 3.4 metres of the width set back 1.614 metres from the front boundary and 2.85 metres set back 3.113 metres from the front boundary. The alcove created inside the garage would be used for storage. In each
(Page 5)
- section of wall is a window. The garage is separated from the front of the house, in which is a window to a study/bedroom, by 2.05 metres.
13 The parapet wall on the northern boundary is 7.69 metres long and 2.26 metres high set back 1.614 metres from the front boundary.
14 The respondent granted the proposed development conditional approval. The application to the Tribunal is for review of condition (a), which reads:
"(a) The proposed double garage within the front setback and the associated crossover is to be deleted and does not form part of this approval."
Planning framework
15 The subject land is zoned residential R20 under the respondent's Town Planning Scheme No 4 (TPS 4) and Urban in the Metropolitan Region Scheme.
16 Clause 27(4) of TPS 4 provides, relevantly:
"Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to:
(a) the provisions of this Scheme and any written law applying within the scheme area including the Metropolitan Region Scheme;
(b) any relevant planning policies;
…
(e) any submission accompanying or relating to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenity of the locality;
(h) the design, scale and relationship to the existing buildings and surroundings of any proposed building or structure."
17 Schedule 1 of TPS 4 includes the following definitions:
(Page 6)
- "Amenity: means all those factors, which combine to form the character of an area and include the present and likely future amenity.
Streetscape:
(a) means the total visual impression gained from any one location within a street including the natural and manmade elements; and
(b) is made up of the appearance of and the relationships between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping."
18 Clause 41 of TPS 4, provides that in considering an application for development approval in the "Residential" zone regard is to be had to objectives including:
"(g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping."
19 Also referred to in this matter are the Residential Design Codes of Western Australia 2002 (Codes). In Element 2 of the Codes, 3.2.3 deals with front setback requirements for garages and carports and states that "Acceptable Development" is a garage set back 3.0 metres where vehicles are parked parallel to the street alignment. Under Element 3 of the Codes at 3.3.2 "Buildings on Boundary", it sets out that "walls built up to a boundary behind the front setback line" are "Acceptable Development".
20 The requirements of Element 2 and Element 3 must, however, be considered having regard to policies the respondent has prepared because, in Pt 2 of the Codes at 2.6 "Local Planning Policies", it provides that local planning policies may be prepared to vary the Codes. These may include policies for street setbacks, development within the front setback and the siting of carports and garages.
21 As provided for in cl 78 of TPS 4, the respondent has adopted a Streetscape and Neighbourhood Character (R15 and R20 Zones) Policy (streetscape policy) and a Residential Car Parking Policy (parking policy).
(Page 7)
22 The streetscape policy includes at Pt 3 Setbacks, the following:
"a) The front setbacks of any residential development (new dwellings or alterations to existing dwellings) should:
· respect the established setback pattern in the street block; or
· should [sic] match the setback of the dwellings on either side; or
· where the setbacks of the two adjoining dwellings vary, [the setback should] be approximately midway between those of the adjoining dwellings.
b) Side setbacks of new dwellings or extensions to existing dwellings should conform to the requirements of the RCodes unless the established streetscape exhibits a pattern of lesser side setbacks (sometimes even to nil). In such cases, the City may allow lesser side setbacks provided that these match the established streetscape pattern and would have no undue adverse impact on the affected neighbour.
…
d) The achievement of adequate street setbacks for parking structures (as required by the RCodes) is insufficient to secure the City's approval for their proposed location. Garages and carports must be located on any development site in accordance with the City's policy on 'Residential Car Parking'".
23 The parking policy includes relevant to the proposed garage:
"The City of Subiaco recognises the desire of owners and occupiers to have reasonable access to parking of private vehicles, but wishes to minimise the detrimental impact car parking structures can have on existing streetscapes. … Typical planning concerns include:
- • car parking structures which obscure the dwelling;
• rollerdoors (or similar garage/carport doors), and enclosed structures visually dominating the streetscape;
(Page 8)
- • car parking structures which conflict with an existing pattern of building setbacks;
OBJECTIVES
(i) To assist the development of attractive streetscapes;
(ii) To reduce where possible, the visibility of car parking structures from the perspective of the primary street;
POSSIBLE LOCATIONS
Garages, roller doors or other structures or features deemed visually impermeable will not generally be permitted to be built forward of the front or primary building line. These structures will need to be transparent in design, being visually permeable (carport), with unobscured visibility of the entrance, thereby not dominating the frontage of the property. This will only apply where no other option is available.
VARIATION OF STANDARDS
The Council may approve a variation to the acceptable location of onsite car-parking [sic] requirements under one or more of the following circumstances:
· where there is, in the immediate vicinity of the subject site in the same street, an acceptable existing pattern of parking within the street setback area; (Meaning two or three houses either side or opposite the subject site)
· where, in the opinion of the Council, the proposed parking arrangement would enhance the desired streetscape;"
Respondent's position
25 Mr Daniel Ford, a planning officer at the City of Subiaco, appeared as a witness for the respondent. It was Mr Ford's submission that the proposed garage is in conflict with the parking policy objectives of developing attractive streetscapes and reducing the visibility of car parking structures from the street.
(Page 9)
26 Mr Ford referred to the parking policy preference for garages, roller doors or other visually impermeable structures not generally being built forward of the front or primary building line. That is, where there is no option for parking behind the building line, the preference is for visually permeable structures, such as carports, with unobscured visibility of the house entrance. This, he said, is to avoid the structure dominating the frontage of the property. The proposed garage would obscure the house entrance when approaching from the north and would have a significant visual presence, making it discordant with the existing streetscape.
27 Mr Ford indicated that there might be circumstances where a garage in the front setback was appropriate, hence the word "generally", but he did not believe the proposed garage was supportable. He argued that the provisions in the parking policy for varying the setback did not apply.
28 Mr Ford pointed out that the proposed garage also does not meet the acceptable development criteria of the Codes because the front setback is 1.6 metres and 3.1 metres instead of the stipulated 3.0 metres. In addition, the side parapet wall is forward of the building line in contravention of 3.3.2 of the Codes. In his opinion, this will emphasise the setback variation between neighbours and help obscure the house entrance from the north.
29 Mr Ford said the garage did not respect the street setback pattern or match the setback of adjoining dwellings as required by the streetscape policy. The garage was 6.5 metres further forward than the existing house at 17 Rosalie Street and presented far greater bulk than the carport at the same setback on the lot adjoining to the south.
30 Mr Ford referred to photographs and said the street block is characterised by hardstand areas and carports within front setback areas with garages behind the primary building line. Parking in the front setback could be supported. In the immediate vicinity, however, there were no examples of garages so the proposed garage could not be supported. Mr Ford identified the "immediate vicinity" as five houses either side of the subject land, referring to the definition in the respondent's draft streetscape policy, rather than the two to three lots of the parking policy.
31 Mr Ford acknowledged the garage within the front setback seven lots south of the subject land at No 53 Rosalie Street. This he considered to be different however, because it was approved in 2000 under the previous town planning scheme and planning policies. He also considered the
(Page 10)
- garage at No 53 and its boundary wall had minimal impact because it is next to an existing double garage on the boundary, which could also be discounted because, while it has access from Rosalie Street, it is at the rear of the corner house facing Keightley Road.
32 As to the parapet wall of the liquor store, this, he said, could be discounted because it is the "commercial" end of the street and can be differentiated from the residential section south of the speed hump.
33 Mr Ford emphasised that the policies referred to were developed to protect the character of existing streetscapes and to assist in rejuvenating degenerated streetscapes eroded by previous ad hoc or inappropriate development. In his opinion, the proposed garage represented further inappropriate ad hoc development which would have a detrimental impact on the streetscape and character of the locality and would therefore directly contravene the objectives and intentions of the policies. He was of the view that an "appropriately designed visually permeable structure such as an open carport within the front setback would meet the relevant development standards and policies of the City more adequately than the proposed garage … ".
34 Mr Ford said it was the respondent's concern that an approval would be viewed as a precedent by others on the redevelopment of other sites in this section of Rosalie Street, and this would lead to a further adverse impact on the streetscape.
Applicant's position
35 The applicant first called Mr Richard Longley, an experienced architect. At the heart of Mr Longley's submission was his description of Subiaco and Shenton Park as architecturally diverse localities, with each street having its own pattern and atmospheric "feel". This patchwork of development was drawn together by good planning and response to scale and relationships between buildings in particular streetscapes. In his opinion, the pattern of development in Rosalie Street, is such that the proposed garage is in keeping with the existing streetscape and relationships between buildings and will not detract from the amenity of neighbours. He referred to letters of support from seven neighbours to the south and opposite.
36 Mr Longley put into evidence a series of photographs of buildings in the street he said illustrated his point. These included the garage No 53 and garages at three other lots, partly in front of the building line, which in his opinion, combined to give a feeling to the street that was apart from
(Page 11)
- the clinical approach of the policies. He believed the proposed garage would not compromise the established rhythm of the built form in the street.
37 Mr Longley made the point that the previous dwelling on the land had a setback of just under 3.0 metres and, as the proposed garage would be replicating this former development, it would be a continuation of the previously existing streetscape. This streetscape includes to the north some 63 metres of wall interrupted only by closed gates comprising the 2.0 metre high front boundary wall of No 17 and the parapet wall of the liquor store. The proposed garage, he submitted, was consistent with this street pattern.
38 It was his submission that the garage would provide concealment for "life's clutter", and he referred to the photographs showing various carports at the front of houses in the street with domestic items, bicycles and the like haphazardly stored and visible.
39 A particular argument advanced in support of a garage was that it would provide security for vehicles and personal items. Without this security and with vehicles housed in a carport, security would have to be provided by a wrought iron fence and security gates closing off the front yard from the street. This, he said, would prevent people approaching the front door, stopping the desired interaction between the street and the house, and would require the use of an unfriendly cameraactivated gateway.
40 Mr Longley agreed that a garage set forward of the main structure with its doors opening directly to the street would be obtrusive in the streetscape. The photographs of other garages illustrated this point. In recognition of this, the garage was designed with side entry, with the side wall facing the street complementing the architecture of the house and visually withdrawing the garage door from the streetscape. The access arrangement also increased visibility between vehicles leaving and the footpath.
41 The second witness for the applicant was Mr Timothy Anderson, her husband and a long term resident of Shenton Park and of the street. Mr Anderson repeated some of the points made by Mr Longley, but also emphasised his view of the existing streetscape and the elements that contributed to the character of the street. He made particular note of the liquor store and the high front boundary fence to the north and to the south, the two garages on or near the street frontage at and adjoining
(Page 12)
- No 53. These, he said, constitutes the "norm of our street", and the proposed development would continue that. He was aware that the garages to the south were approved under the previous scheme and policies and would not be approved today, but said they nevertheless formed the character of the street. He added also that the driveway arrangement would provide two additional onsite parking bays and so help address street parking problems in Rosalie Street, particularly during events at the liquor store.
42 Mr Anderson restated the desire of the applicant and himself to secure their cars and the items that would be stored in the garage. He believed that if these items were visible, they would attract uninvited attention. Community spirit and interaction between neighbours would be maintained if the proposed design and open yard were allowed, whereas they would not if a secured front fence necessary to protect a carport had to be built.
43 Mr Anderson argued that the garage complies with the policies because it does not have the appearance to the street of a parking structure, such as would a carport or a garage door facing the street. He said the applicant would amend the design to have the garage set back 3.0 metres as stipulated in the Codes and would vary the colours, finishes and roofing materials, if this would assist.
Comment
44 In assessing the streetscape of Rosalie Street, the applicant looked to the development in the street block between Nicholson Road and Keightley Road. The respondent looked to the "immediate vicinity", preferring the draft streetscape policy definition of five properties either side of the proposed development on both sides of the street. The Tribunal finds the respondent's approach useful in considering the impact of the proposal on immediate neighbours but the applicant's approach is consistent with definition of streetscape in TPS 4 and a better reflection of what would influence an observer of the street.
45 The respondent argued that the two garages in the setback at the southern end of the street block should be distinguished because they were approved under previous planning standards, and the parapet wall of the shop to the north, while in the "immediate vicinity", should be distinguished because the speed hump separates the commercial end from the residential section of Rosalie Street.
(Page 13)
46 The Tribunal considers that the parapet wall, while clearly of a commercial building, does influence the character of the streetscape at the northern end of the street. The garages at the southern end of the street block are also visually part of the streetscape, notwithstanding that they are separated from the subject land by seven lots rather than five.
47 The question that then arises is whether it is appropriate to continue this line of development between the two ends of the street block. Between the lots with development on or near the Rosalie Street boundary at each end of the street block are eight lots, one of which is a "pocket park" and, at the northern end, the house with the 2.0 metre high front wall. Of the others, two lots have carports in the front setback, and none has a garage in the front setback. Number 25 adjoining to the south has a carport at the same setback as the proposed garage and with the house at the setback of the applicant's approved house. If the house at No 17 is demolished, as both parties say is likely to happen now that it straddles two lots, it can reasonably be assumed there will be a reduction in the continuous length of wall, and any new houses would look to the policies for front setback; that is, the setback of solid structures on adjoining lots. The respondent says the wall at No 17 would not be approved today and that any development of the two new lots will have to comply with its fencing policy.
48 From the evidence presented, the Tribunal is of the view that the buildings on or near the street boundary to the north and south of the subject land are visually intrusive in the streetscape and do not make a positive contribution. The Tribunal is not convinced that a continuation of development at a reduced setback between the ends of the block is a streetscape feature to be endorsed.
49 The applicant's architect has broken up the wall of the garage and included windows, such that, from the sketches, it has some characteristics of a house when viewed from directly in front. The side entry garage design also removes the unattractive appearance of garage doors from this view. From other views, there is the appearance of a separate structure in front of the house. It remains that the resulting solid construction will be near the front boundary, prominent in the front setback area. It is considered that adding an additional solid structure in such a position would not be a positive contribution to the streetscape.
50 Reference is made to the now demolished house on the subject land being set back 3.0 metres. That wall was 3.5 metres wide and 3.0 metres from the side boundary. The proposed garage is 6.0 metres wide and on
(Page 14)
- the boundary, and while there are some common elements, the proposed garage is not simply a replication of design and scale, and the location of the former house is not, of itself, seen to be a factor that provides a basis for approving this development. The applicant also offered as an alternative a garage at the 3.0 metre setback stipulated in the Codes. As provided for at 2.6 of the Codes, however, the respondent has adopted policies with requirements alternative to those expressed in the Codes. The respondent's policies are an attempt to maintain an attractive streetscape. Simply adding more of the elements that are, at best, neutral is not seen as a means of achieving this.
51 The applicant has a genuine concern to provide suitably secure car parking facilities for her and her husband's vehicles. The cost of not having a garage to provide this is said to be loss of the ability of visitors to approach the front door, removing interaction between the house and the street. This would appear to be a very narrow approach and alternative design solutions could be explored. The respondent has acknowledged that parking of vehicles in front setbacks is part of this streetscape and so a crossover is required for this to occur. Whether that crossover is the one now proposed or a different one is a matter than can be resolved between the parties. Visible domestic "clutter" was also raised as an issue. That others choose to have clutter visible to the street is not considered to be a basis for setting aside the policies.
Conclusion
52 The respondent has adopted policies that address the need to recognise the importance of protecting streetscapes. The streetscape of Rosalie Street between Nicholson Road and Keightley Road is characterised by development on the street boundary at each end, and in between, open development characterised by either landscaping or carports within the front setback.
53 Proposed for the subject land is a solid structure a side entry garage in the front setback. On the evidence, the Tribunal does not consider that another solid construction in the front setback of a house will contribute positively to the streetscape. There is nothing to differentiate this development as one for which the policies should be set aside.
54 The Tribunal has therefore determined that the development of the proposed garage is not to be supported.
(Page 15)
Orders
55 The orders of the Tribunal are:
1. The application for review is dismissed; and
2. The decision of the respondent to impose condition (a) on the approval of the development at 21 Rosalie Street, Shenton Park dated 2 June 2005 is affirmed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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