BAKER and TOWN OF VINCENT
[2008] WASAT 4
•9 January 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BAKER and TOWN OF VINCENT [2008] WASAT 4
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: 6 DECEMBER 2007
DELIVERED : 9 JANUARY 2008
FILE NO/S: DR 202 of 2007
BETWEEN: KATHLEEN MAY BAKER
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning Application for retrospective approval Rightofway Site line truncation Bollards Provision of an encumbrance on Title Rear limestone wall Steel shed
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)(b), s 31(1), s 31(3)
Town of Vincent Town Planning Scheme No 1, cl 32(1)
Transfer of Land Act 1893 (WA), s 70A
Result:
Matter determined in accordance with the variation provisions of s 29(3)(b) of the State Administrative Tribunal Act 2004 (WA)
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr S Bain
Solicitors:
Applicant: Self-represented
Respondent: Town of Vincent
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Town of Vincent on 14 May 2007 to impose a retrospective condition of approval relating to an existing rear boundary limestone wall and an existing rear storage shed/garage at 35 Harold Street, Highgate.
The matter was reconsidered by the Town of Vincent on 14 August 2007 but its decision required the installation of two bollards immediately in front of the storage shed/garage, and an encumbrance on the Title under s 70A of the Transfer of Land Act 1893 (WA). These conditions were also opposed by the applicant.
The Tribunal had regard to the arguments of the parties, the background to the matter, the relevant policy provisions and whether the respondent's decision of 14 August 2007 was fair and reasonable in the circumstances of the case.
The decision of the Tribunal was to vary the respondent's decision in accordance with the provisions of s 29(3)(b) of the State Administrative Tribunal Act 2004 (WA).
Introduction
The application for review, dated 31 May 2007, was lodged by Mrs Kathleen May Baker (applicant) under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) and against a decision of the Town of Vincent (Town or respondent) on 14 May 2007 to impose a retrospective condition of approval that was unacceptable to the applicant.
The condition number (i)(b)(2) required:
"A minimum 0.8 metre by 0.8 metre truncation being provided where the wall meets the driveway from Phelps Lane to the adjacent 'Steel Shed' (garage) OR the roller door to the steel shed adjacent to Phelps Lane being removed and filled in to ensure that vehicular access is not available from Phelps Lane."
Following a directions hearing on 20 June 2007, and an on-site mediation on 19 July 2007, the respondent was invited to reconsider its decision under the provisions of s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
At an Ordinary Meeting of Council on 14 August 2007 it was resolved:
"(i)within 28 days of the State Administrative Tribunal's determination of the review matter, two bollards shall be installed immediately in front of the roller door of the 'Steel Shed', which is located adjacent to the southern boundary of the property. The location of the bollards shall be approved by the Town's Technical Services prior to their installation. The bollards shall meet the Town's specifications and all costs associated with their supply and installation shall be borne by the applicant/owner(s). The removal of the bollards in the future will be required to be approved by the Town and may result in the requirement to provide a visual truncation; and
(ii)within 28 days of the State Administrative Tribunal's determination of the review matter, the owner(s) shall agree in writing to a notification being lodged under section 70A of the Transfer of Land Act notifying proprietors and/or (prospective) purchasers of the property that the 'Steel Shed', which is located adjacent to the southern boundary of the property, shall not be used for the storage or accommodation of motor vehicles and have no motor vehicle access from Phelps Lane, and that any proposal requiring the removal of the bollards in the future will be required to be approved by the Town and may result in the requirement to provide a visual truncation. This notification shall be lodged by the applicant/owner(s) and registered in accordance with the Transfer of Land Act within 28 days of the State Administrative Tribunal's determination of the review matter."
For the purposes of this review, and in accordance with the provisions of s 31(3) of the SAT Act, the decision of the respondent of 14 August 2007 is now the subject of this review.
Subject land
The subject land is located at 35 Harold Street, Highgate. There is a single storey residence on the 483 square metre lot.
At the rear of the property is a well constructed 2 metre high limestone wall positioned on the boundary with Phelps Lane. Also, a steel shed/garage with rear door access is constructed 0.8 metres in from the rear property boundary. There is extensive vegetation inside the boundary wall.
Phelps Lane is sealed and provides vehicular and pedestrian access to a number of properties along its length.
The legislative and policy framework
The subject land is zoned "urban" in the Metropolitan Region Scheme and "residential" in the Town of Vincent Town Planning Scheme No 1 (TPS 1). It has a coding of R50.
Of relevance are certain policies contained within the Town of Vincent's Planning and Building Policy Manual and Policy Manual (Technical Services - Engineering). These are:
(a)Visual Sight Line Truncations - Driveways and Rights of Way (ROWs) (Policy No 2.2.12);
(b)Street Walls and Fences Policy (Policy No 3.2.5);
(c)Vehicular Access Policy (Policy No 3.2.6);
(d)Vehicular Access to Dwellings via a Right of Way (Policy No 3.4.6)
Respondent's position
The position of the respondent is outlined in a Statement of Issues, Facts and Contentions received by the Tribunal on 16 November 2007. It contends:
(a)The existing development is not consistent with Policy 2.2.12. It prescribes acceptable sight line truncations to ensure adequate visibility of pedestrians, cyclists or other vehicles by the driver of the vehicle exiting parking spaces and also to provide an opportunity for the exiting vehicle to be detected prior to entering the road or pathway.
(b)The acceptable sight line truncation for low to medium peak vehicle generation is 1.5 metres by 1.5 metres. In the case of a right of way (ROW) this can be reduced to 1.0 metres by 1.0 metres and in this case it has been reduced further to 0.8 metres by 0.8 metres because the applicant's garage is set back 0.8 metres from the southern boundary.
(c)Although the applicant claims that the steel structure is not a garage, but a storage shed, it could be used as a garage by a future owner. This would create a dangerous environment for pedestrians along Phelps Lane.
(d)If the applicant had applied for planning approval under cl 32(1) of TPS 1 for the rear wall, a visual truncation would have been applied. Phelps Lane provides pedestrian access to a multi-unit development owned by the Department of Housing and Works, and measures to ensure pedestrian safety are very important.
(e)As an alternative to modifying the rear limestone wall the respondent has offered an alternative by way of the installation of two bollards to render the garage inaccessible to vehicles.
(f)Although the applicant considers the two bollard requirement to be excessive she has proposed:
"to install two bollards, one on either side of the shed, indicating a potential future access point."
(g)Although bollards may have been installed on either side of garage access points in other locations in the vicinity they were not put there as an alternative to truncations, but to protect the corners of the adjacent brick walls.
(h)The property at 12 Turner Street, Highgate has a dual frontage to Phelps Lane and comprises four grouped dwellings. The rear grouped dwelling has vehicular access from Phelps Lane and has a bollard adjacent to the vehicular access point. However, this was approved in 1995 and prior to the 1997 Policy No 2.2.12.
(i)The provision of an encumbrance under s 70A of the Transfer of Land Act 1893 (WA) (TL Act) is not considered onerous and is often applied to developments. It is designed to ensure that future owners are aware that the use of the structure for a motor vehicle and adjacent wall are non-compliant, and the potential impact it may have on the safety of passing pedestrians.
(j)The respondent has granted dispensation to the applicant in relation to the construction of unauthorised structures, including the height of the rear limestone wall, and has reasonably accepted the installation of two bollards instead of the requirement for visual truncations.
Applicant's position
The position of the applicant is outlined in a Statement of Issues, Facts and Contentions received by the Tribunal on 23 November 2007. It contends:
(a)Policy No 2.2.12 should not be determined in isolation. To enforce an inflexible "one size fits all" policy, when specific circumstances preclude this, is not consistent with best practice.
(b)Based on professional advice a truncation could not be effective without restricting access to a sewerage inspection shaft. This would breach a responsibility to maintain unobstructed wastewater access.
(c)The respondent has not consistently applied Policy No 2.2.12. When viewed from the west, the rear tandem parking at 37 Harold Street (adjacent to the applicant's shed) presents a concealed entry point to Phelps Lane. Also, when viewed from the west the entry to the garage at 18A Phelps Lane, where no truncation has been provided, also presents limited visibility.
(d)The shed poses no danger for pedestrians along Phelps Lane because it is not used for vehicle storage. Also, a future owner could park in the front driveway on the subject land or utilise, as is frequently the case, a residential parking permit.
(e)The shed, besides serving as a storage facility, also provides for essential rear access because:
(i)the property has very restricted (0.9 metre) single side access from Harold Street;
(ii)trade and maintenance services mostly necessitate rear access from Phelps Lane;
(iii)access from Harold Street is unreliable due to congestion from TAFE parking; and
(iv)the shed provides the sole means of adequate access for essential and emergency services.
(f)When the rear wall was constructed five years ago, Phelps Lane was an unsealed ROW. At the time the applicant was advised by Council staff that planning approval was not required. Also, the requirement to maintain unrestricted access to the sewerage inspection shaft was provided for when constructing the wall.
(g)If two bollards on either side of the shed to indicate a potential future access point are unacceptable, then one bollard, centrally located, would be sufficient to render the shed inaccessible for vehicle access.
(h)Notwithstanding the respondent's arguments with respect to 12 Turner Street, a dispensation is required because:
(i)the shed on the subject land is not used for vehicle access and only has the "potential" to become a vehicle access point at some future time; and
(ii)given the emphasis on higher density inner city development the subject land would be a prime site for subdivision and the potential to use the shed as a garage would no longer be an issue.
(i)The requirement to lodge a notification under s 70A of the TL Act is tantamount to a fine. Also, based on a land valuer's advice the encumbrance could seriously impact the sale price of the property.
(j)The s 70A notification would not prevent a further owner removing the bollards and using the shed for vehicle access. The imposition of the notification does not achieve the aims and intent of Policy 2.2.12 but merely abrogates the respondent's duty to monitor the policy.
Planning issues
The principal planning issue is are the respondent's requirements for two bollards and a s 70A notification lodged under the TL Act fair and reasonable in the circumstances of this case?
Assessment of proposal
Background
The following series of events have occurred:
(a)On 8 August 2006, the Town received a written complaint concerning the height of the rear (southern) boundary wall and the encroachment of the garage into the curtilage of the adjoining No 37 Harold Street, with no provision for visual truncations.
(b)After undertaking a site inspection the Town wrote to the applicant and advised that the rear limestone wall was unauthorised and exceeded the maximum height restriction. Also, that the garage did not comply with Policy No 2.2.12. The applicant was advised to comply with the height and truncation requirements within 14 days or submit an application for retrospective approval.
(c)On 6 October 2006, the Town received an application for retrospective approval.
(d)On 12 January 2007, the Town granted conditional approval including:
(i)the height of the wall being reduced to a maximum 1.8 metres;
(ii)a minimum of two significant appropriate design features being incorporated onto the southern Phelps Lane face of the wall to reduce the visual impact; and
(iii)a minimum 1.5 metre by 1.5 metre truncation OR the roller door to the steel shed being removed and filled in to ensure no vehicular access from Phelps Lane.
(e)On 20 March 2007, an application to reconsider the above three conditions imposed on 12 January 2007 was reviewed by the Town.
(f)On 24 April 2007, a new approval was issued by the Town that no longer required the height of the wall to be reduced and only required a 0.8 metre by 0.8 metre truncation. The requirement for two significant design features on the face of the wall was retained.
(g)On 31 May 2007, the application for review was lodged with the Tribunal.
(h)Following a directions hearing on 20 June 2007 and an on-site mediation on 19 July 2007, the respondent was invited to reconsider its decision of 24 April 2007 under the provisions of s 31 of the SAT Act.
(i)On 14 August 2007, the Town resolved in accordance with [8] above requiring the installation of two bollards in front of the roller door and a notification under s 70A of the TL Act.
(j)A formal hearing of the Tribunal was conducted on 6 December 2007.
Town of Vincent policy provisions
Visual Sight Line Truncations - Driveways and Rights of Way (ROW) Policy (Policy No 2.2.12)
The principal objective of the policy is to identify the sight line truncation requirement where a vehicle accessway intersects the street alignment; thereby contributing to the safe movement of vehicles and pedestrians at such locations.
The general minimum truncation requirement for low and medium peak vehicle generation is set at 1.5 metres by 1.5 metres.
Street Walls and Fences Policy (Policy No 3.2.5)
Although this policy is principally concerned with street walls and fences at the front of residential properties it does provide for variations to secondary streets in the following terms:
"In these instances, the solid portion of the wall and/or fence may increase to a maximum height of 1.8 metres, provided that the wall and/or fence has at least two (2) appropriate design features to reduce the visual impact - for example, open structures, recesses and/or planters facing the road at regular intervals and varying finishes."
Vehicular Access Policy (Policy No 3.2.6)
This policy provides for the utilisation of rear rights of way wherever possible for cars and service vehicles and for a development to comply with Policy No 2.2.12.
Vehicular Access to Dwellings via a Right of Way Policy (Policy No 3.4.6)
This policy provides the circumstances under which the Town may allow vehicular access to be provided to a residential dwelling via a ROW, and does so in accordance with Policy No 2.2.12.
The matter of bollards
In its determination of 14 August 2007, the respondent required the installation of two bollards installed immediately in front of the roller door of the "Steel Shed'.
In the applicant's Statement of Issues, Facts and Contentions, as outlined above, she suggests that if two bollards on either side of the shed to indicate a potential future access point are unacceptable that a single bollard, centrally located, would be sufficient to render the shed inaccessible for vehicle access.
The Tribunal believes that:
(a)two bollards on either side of the shed to indicate a potential future vehicle access would serve no useful purpose;
(b)that two bollards positioned in front of the roller door is an excessive requirement; and
(c)a single bollard, centrally located and installed immediately in front of the roller door, would be sufficient to prevent vehicular access but still allow access for the delivery of goods and the provision of essential maintenance services.
The matter of s 70A of the Transfer of Land Act 1893 (WA)
In its determination of 14 August 2007, the respondent required agreement by the applicant to a notification being lodged under the provisions of s 70A of the TL Act. The full text of the determination is at [8(ii)] above.
In the applicant's Statement of Issues, Facts and Contentions, as outlined in [16(i)] and [16(j)] above, she argues that a condition requiring an encumbrance on the Certificate of Title to advise future owners that the 'Steel Shed' is not to be used for vehicle storage and, if so, a visual truncation may be required, is onerous and unnecessary.
The rationale used by the applicant is that such an encumbrance could seriously impact on the sale price of the property and would not prevent a future owner from removing the bollard(s). Also, that the matter is unlikely to be monitored by the Town.
The position of the Tribunal is:
(a)That having regard to the fact that the respondent is not requiring a visual truncation to the rear limestone wall at this time that a notification under s 70A of the TL Act is fair and reasonable;
(b)If a future purchaser of the subject land requires the "Steel Shed" for vehicle parking purposes, that the notification would advise of the purchaser's responsibility in the matter;
(c)That a relatively minor modification to the western end of the limestone wall to achieve the visual truncation would not be cost prohibitive; and
(d)That the valuation of a residential property with a coding of R50 is unlikely to be seriously affected by such an encumbrance; particularly if the property is developed in accordance with the coding and the "Steel Shed" and part, or all, of the limestone wall is removed.
Conclusions
The application for review was lodged against a decision of the Town of Vincent to impose a retrospective condition of approval that was unacceptable to the applicant.
The condition required a minimum 0.8 metre by 0.8 metre truncation where the existing limestone wall at the rear of the subject property meets the so-called "Steel Shed", or that the roller door be removed and filled in to ensure that vehicular access was not available.
Following a reconsideration of the matter by the respondent, the truncation requirement was removed, but replaced by conditions requiring the installation of two bollards in front of the roller door and an encumbrance on the Title under s 70A of the TL Act. This encumbrance would alert the future owner(s) that if a bollard(s) was to be removed to allow vehicular access into the shed/garage that a truncation to the adjacent limestone wall may be required.
In undertaking this review the Tribunal had regard to the arguments of the parties, the background to the matter, the relevant policy provisions and whether the circumstances if the case justified the need for two bollards and a s 70A notification under the TL Act.
In the view of the Tribunal, the imposition of a single bollard only, and a s 70A notification with an encumbrance on Title in accordance with the TL Act, are fair and reasonable in the circumstances of this case.
Orders
For the foregoing reasons, and in accordance with s 29(3)(b) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
(1)Within 60 days of the date of this decision, a single bollard shall be installed immediately in front of the roller door of the 'Steel Shed', which is located adjacent to the southern boundary of the property. The location of the bollard shall be approved by the Town of Vincent's Technical Services prior to its installation. The bollard shall meet the Town of Vincent's specifications and all costs associated with its supply and installation shall be borne by the applicant/owner(s).
(2)Within 30 days of the date of this decision, the owner(s) shall agree in writing to the Town of Vincent to a notification being lodged under s 70A of the Transfer of Land Act 1893 (WA) notifying proprietors and/or (prospective) purchasers of the property that the "Steel Shed", which is located adjacent to the southern boundary of the property, shall not be used for the storage or accommodation of motor vehicles and have no motor vehicle access from Phelps Lane, and that any proposal requiring the removal of the bollard in the future will be required to be approved by the Town of Vincent and may result in the requirement to provide a visual truncation. This notification shall be lodged by the applicant/owner(s) and registered in accordance with the Transfer of Land Act 1893 (WA) within 60 days of the date of this decision.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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