BENNETT and TOWN OF CAMBRIDGE

Case •

[2021] WASAT 18

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   BENNETT and TOWN OF CAMBRIDGE [2021] WASAT 18

MEMBER:   MS M CONNOR, MEMBER

HEARD:   12 NOVEMBER 2020

DELIVERED          :   10 FEBRUARY 2021

FILE NO/S:   DR 130 of 2020

BETWEEN:   MARTIN LAWRENCE BENNETT

First Applicant

BRIGITTE FRANCES BENNETT

Second Applicant

AND

TOWN OF CAMBRIDGE

Respondent


Catchwords:

Town planning - Development - Carport - Variation to 9 metre minimum primary street setback - Non-complying application - Whether development is consistent with local planning policies - Whether local planning policy is based on sound town planning principles - Existing streetscape and desired future streetscape - Whether development is compatible with its setting and the amenity of the locality - Whether development demonstrates compliance with design principle 5.1.4 of the Residential Design Codes Volume 1 - Whether there is cogent reason or sound basis to depart from application of planning principles in the circumstances of this case.

Legislation:

Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 3, cl 3(5), cl 4, cl 67
Planning and Development Act 2005 (WA), s 252(1), s 257B(3)
Planning Regulations Amendment Regulations 2020 (WA), Div 2, cl 67(m)
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 2.4, cl 2.5.1, cl 2.5.2, cl 2.5.3, cl 5.1.4, Pt 2
Town of Cambridge Local Planning Scheme No 1, cl 7, cl 16, cl 25(1), cl 26, cl 26(1), cl 26(1)(b), cl 34, Pt 6, Sch A, cl 3A, cl 3A(2), Pt 6

Result:

Application for review dismissed
Decision of respondent affirmed

Category:    B

Representation:

Counsel:

First Applicant : ML Bennett
Second Applicant : ML Bennett
Respondent : CA Slarke

Solicitors:

First Applicant : Bennett + Co
Second Applicant : Bennett + Co
Respondent : McLeods

Case(s) referred to in decision(s):

Alcock and Town of Claremont [2013] WASAT 83

Antunovich and City of Stirling [2011] WASAT 90

Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15

Clive Elliot Jenning & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276

Falc Pty Ltd and Anor v State Planning Commission (1991) 5 WAR 522

Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR(WA) 1

Russell v State Planning Commission (1984) 53 LGRA 403

Southern Forest Developments Pty Ltd and Western Australian Planning Commission [2019] WASAT 125

Spectator Investments Pty Ltd and the City of Joondalup [2006] WASAT 232

Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196

Tooth and City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. Brigitte and Martin Bennett (applicants) made application to the Town of Cambridge (respondent or Council) for development approval to construct a carport on No 7 (Lot 788) Peebles Road, Floreat (subject land).

  2. The Council at its meeting of 26 May 2020 resolved to refuse to grant development approval for a carport on the subject land as shown on plans stamped received 5 March 2020 for the following reasons:[1]

    1.The proposal does not comply with Clause 26 of Local Planning Scheme No 1 and discretion should not be exercised under Clause 34 of Local Planning Scheme No. 1 as the proposed reduced setback is considered out-of-character with the existing local development context and therefore is not in accordance with orderly and proper planning in the locality;

    2.Having due consideration of sub-clauses 67(m) and (n) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the proposal is not compatible with its setting on the basis of the scale and building bulk impacts associated with the carport, with those impacts having a detrimental impact on the existing residential streetscape;

    3.The proposal does not satisfy the design principles of Provision 5.1.4 – Open Space of State Planning Policy 7.3 – Residential Design Codes Volume 1 as the carport will not reflect the existing or desired streetscape character and adds to the building bulk on site;

    4.The proposal is not considered to meet the intent of the Floreat Precinct Policy (the Town's Local Planning Policy 2.3) and the Town's Streetscape Policy (Local Planning Policy 3.1) as it is not in keeping with the desired local character to preserve the original open nature and garden quality that the precinct was designed for; and

    5.The approval of the proposal will establish a precedent which may be considered in future planning decisions, and as such, is not consistent with orderly and proper planning.

    [1] Application for Review and supporting documents dated 16 June 2020 (Exhibit 1).

  3. The applicants, on 16 June 2020, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicants seek an order that the respondent's decision be set aside and a decision substituted granting development approval to the proposed carport on the subject land.

  4. Although the parties engaged in mediation, the matter proceeded to final hearing for adjudication by the Tribunal.  The Tribunal, together with representatives of the parties and their experts, had the benefit of a view of the subject land and surrounding streets.[2]

Subject land

[2] A detailed description of the route undertaken during the view can be found at ts 4, 12 November 2020.

  1. The subject land is more particularly described as Lot 788 on Plan/Diagram 6279, being the whole of the land contained in Certificate of Title Volume 1153 Folio 692 and is 837m² in area.[3]  The lot is rectangular in shape, being 18.29 metres wide and 45.72 metres deep. 

    [3] Respondent's section 24 Bundle of Documents, dated 23 September 2020 (Exhibit 3) Tab 1.

  2. The subject land is situated on the southern side of Peebles Road and located within the street block bounded to the west by Moray Avenue, to the east by Crosby Street, and to the south by Grantham Street.

  3. Improvements on the subject land include:

    •a single storey dwelling (circa 2008) approximately 418m² in area, which incorporates a double garage and storage area under the main roof of the dwelling;

    •a 4.89 metre wide driveway, two brick piers (setback approx 1.3 metres from the front boundary) that support electric metal swinging gates that open towards the street; and

    •a 'visually permeable' front fence (east of the driveway) that is completely obscured by vegetation and solid masonry walls (west of the driveway) incorporating mail and metre boxes.

The proposal

  1. Development approval is sought for the construction of a 'double width' carport fitted with an open roller door, to be located in front of the garage of the exiting dwelling on the subject land.  The applicants intend to remove the existing large steel gates (that open outward from the property towards the street) and brick up two of the existing pillars to support the northern elevation of the gable roof and abut the southern face of the roof against the existing garage.  The carport is proposed to be setback 1.345 metres from the northern (front) boundary and 1.81 metres from the western (side) boundary.

  2. The dimensions of the proposed carport are 6.98 metres in length by 5.9 metres in width (including the width of the piers).[4]  The height of the two supporting columns of the carport, as dimensioned on the plans, is 2.572 metres.  

Planning framework

[4] Respondent's section 24 Bundle of Documents, dated 23 September (Exhibit 3 Tab 1) - Proposed Ground Floor Plan.

  1. The subject land is zoned 'Urban' in the Metropolitan Region Scheme and is land within the confines of the Scheme Area as identified in the Scheme Map of the Town of Cambridge Local Planning Scheme No 1 (LPS 1 or Scheme).

  2. LPS 1 comprises the Scheme Text, the deemed provisions as set out in Schedule 2 - Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions), the Scheme Map and the supplementary provisions set out in Sch A of the Scheme Text. Further, the Scheme is to read in conjunction with any local planning strategy for the Scheme Area.[5]

    [5] Clause 7 of LPS 1.

  3. Pursuant to s 257B(3) of the PD Act to the extent of any inconsistency between a deemed provision with another provision of LPS 1, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.

  4. The subject land is zoned 'Residential' with a density coding of R12.5 under the Scheme Maps of LPS 1.   

  5. Clause 16 of the Scheme specifies the objectives of the Residential zone. The pertinent objective in this case is bullet point two, which states:

    •To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.

  6. The term 'streetscape' is defined in Part 6 - Terms Referred To In Scheme (Part 6) as follows:

    (a)means the total visual impression gained from any one location within a street including the natural and man-made elements; and

    (b)is made up of the appearance of the relationship between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.

  7. Clause 3A of Schedule A - Supplemental Provisions to the Deemed Provisions (Sch A) states that '[t]he Scheme Area is divided into the Precincts set out in the Precinct Local Planning Policies'. Clause 3A(2) of Sch A lists the Precincts within the Scheme Area and states that there is a Precinct Local Planning Policy for each Precinct. The Council has adopted Local Planning Policy 2.3 - Precinct P3: Floreat (LPP 2.3), which includes the subject land in the Floreat Precinct (P3).

  8. Clause 25(1) of LPS 1 specifies that '[t]he R-Codes, as modified as set out in Clause 26, are to be read as part of this Scheme'.

  9. Clause 26 of the Scheme set outs modifications of the R-Codes and the relevant modifications in this matter is specified in cl 26(1)(b) as follows:

    Notwithstanding the provisions of the R-codes, the following special applications of the R-Codes apply ­

    …

    (b)street boundary setbacks within the Floreat Precinct (P3) shall be a minimum of 9 metres from the primary street (as defined by Council and 4.5 metres from the secondary street, except within the Residential R15 zone.[6]

    [6] The 9 metres setback from the primary street corresponds with Clause 5(1) of By-Law 43 Building on Endowment Land & Limekilns Estate (Exhibit 3 Tab 5).

  10. The effect of this clause is to replace the provisions of the R­Codes Volume 1 that would otherwise apply to street boundary setbacks.  There is no dispute that the proposed development does not comply with the minimum 9 metres street boundary setback from the primary street as required within the Floreat Precinct (P3).

  11. Clause 34 of LPS 1 provides for variations to site and development requirements.  An application that does not comply with a standard or requirement of LPS 1, where the standard or requirement does not provided for any permitted variation, is called a 'non­complying application'.  The application before the Tribunal is such an application.  The Council may refuse or approve a non­complying application with or without conditions.[7] 

    [7] Clause 34(1)(a) and cl 34(2) of LPS 1.

  12. Clause 34(3) of LPS 1 provides that:

    Where in the opinion of Council a variation under sub clause (1) is likely to affect any owners or occupiers in the general locality, the Council may -

    (a)consult with the party or parties who, in the opinion of Council, may be affected by the approval of the development; and

    (b)have regard to any submissions before making its decision to grant the variation.

  13. The development application was advertised for a period of 14 days in accordance with the respondent's Local Planning Policy 1.2 – Public Notification of Planning Proposals and no submissions were received during the public consultation period.

  14. Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:

    •the aims and provisions of LPS 1 (subclause (a));

    •the requirements of orderly and proper planning (subclause (b));

    •any approved State planning policy (subclause (c));

    •any local planning policy for the Scheme area (subclause (g));

    •the compatibility of the development with its setting including the relationship of the development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development (subclause (m));[8]

    •the amenity of the locality including amongst other matters, the character of the locality (subclause (n));

    •any submissions received on the application (subclause (y); and

    •any other planning consideration the local government considers appropriate (subclause (zb)).

    [8] The Tribunal notes that Div 2 of the Planning Regulations Amendments Regulations 2020 (WA) commenced on 15 February 2021.  Subclause 67(m) reads as follows:

  15. Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent, in accordance with the procedures set out in cl 4 of the deemed provisions, has adopted Local Planning Policy 3.1 - Streetscape (LPP 3.1) which applies to all residential development in the Town of Cambridge.  The respondent has adopted this policy 'for the purpose of preserving and enhancing established streetscapes, creating and preserving neighbourhoods that are attractive, safe and offer high amenity for residents and the broader community of the Town of Cambridge.'[9]

    [9] Respondent's section24 Bundle of Documents, dated 23 September 2020 (Exhibit 3 Tab 4).

  16. Provision 1 of LPP 3.1 – 'Consideration of a non-complying application for street setbacks as prescribed in the Scheme' specifies the following additional criteria to which due regard may be given when considering such an application:

    a)The proposed development within the prescribed scheme setback area shall meet the Desired Future Character of the area:

    b)Any building or part of the building (including a carport) in the prescribed scheme setback area shall be set back from side boundaries to preserve a streetscape of distinctly separate single residences separated by open space, and to preserve the amenity of the neighbouring properties;

    c)Retaining walls(s) proposed within the primary and/or secondary street setback may be permitted where:

    i. Do not detrimentally affect adjoining properties;

    ii.Are suitably landscaped to reduce the impact of building bulk; and

    iii.The natural topography of the land can still be interpreted, despite the retaining.

Issue

  1. The parties identified the following four issues for determination in relation to this matter:

    1)Should discretion be exercised to permit a variation to the 9 metre minimum primary street setback set by cl 26 (1) of the Scheme?

    2)Is the development consistent with the Floreat Precinct Policy and Local Planning Policy 3.1 - Streetscape?

    3)Is the development compatible with its setting and the amenity of the locality?

    4)Does the development demonstrates compliance with R-Codes design principle 5.1.4 for with respect to open space?

  2. As expressed by the parties, the ultimate issue in the determination of this matter is whether discretion should be exercised to permit a variation to the minimum 9 metre primary street setback requirement specified in cl 26(1) of LPS 1 (issue 1).  The Tribunal will consider the other three issues first as these issues factor into whether discretion should be exercised in the circumstances of this case.

Is the development consistent with LPP 2.3 and LPP 3.1?

  1. The Floreat Precinct is identified in LPP 2.3 as 'a residential garden suburb with high quality housing in a parkland setting'.[10]  The predominant land use in the Floreat Precinct is low density residential development and the intent of the policy is to maintain that characteristic in the Residential Zone of the Floreat Precinct.   Development in the Residential Zone is to be in accordance with the State Planning Policy 7.3 Residential Design Codes – Volume 1 (R­Codes), LPS 1, any relevant planning policies and where applicable, Local Law 43.

    [10] Respondent's section 24 Bundle of Documents dated 23 September 2020 (Exhibit 3 Tab 3).

  2. LPP 3.1 seeks to encourage good quality and well-designed development that is respectful of established character and amenity whilst recognising any future character objectives and to maintain openness of streetscapes.[11] LPP3.1 provides a character description for four of the Precincts identified in cl 3A of Sch A of LPS 1, which includes Floreat. The design of Floreat was influenced by the Garden City Movement and based on the 'tenets of low-density housing nestled in a picturesque, leafy environment', featuring 'uniform, detached pavilion-style single dwellings with consistent street setbacks and separation between dwellings to provide for Arcadian landscaping'.

    [11] Respondent's section 24 Bundle of Documents dated 23 September 2020 (Exhibit 3 Tab 4).

  3. The character of Floreat, as described in LPP 3.1, is:

    Garden Suburb-style streetscape qualities have largely remained a characteristic of development in Floreat - extensive setback of dwellings from the street and the extent of separation between dwellings were features of the original subdivision.  The gardens of the single detached dwelling in Floreat are also still typically characterised by extensive landscaping in the front garden and verge, retaining the green character of the suburb[.]

  4. The purpose of LPP 3.1 is to preserve and enhance the established streetscapes of Floreat (as described above) and to achieve this aim the 'Desired Future Character' section of the policy provides guidance on the interrelationship of new development with the established streetscapes, which provides as follows:

    •Development shall be constructed to maintain the traditional street setbacks and separation between buildings, to preserve the original open nature and gardenesque quality that the precinct was designed for;

    •The visual bulk of new development should be minimised through articulation of larger wall lengths, and the stepping back of upper storey walls, to enhance the streetscape vision for detached, low-scale villas set in landscape

    •New development shall create and enhance open landscaped front gardens within the street setback area to maintain the green character of the streetscape and the precinct;

    •New development shall be designed to preserve street trees and verge treatments to maintain the green leafy character of the streetscape and the precinct;

    •New development shall be oriented toward the street to maintain streetscape consistency;

    •New development shall contribute to the streetscape through varied and high quality architecture, consistent with the original vision for diverse villas set within a gardenesque landscape;

    •New development shall reduce the impact of parking structures on the existing streetscape by ensuring that such structures are located at the rear and sides of properties.

  1. The respondent contends that the proposed carport, which is located in the 9 metre primary street setback area, does not preserve or enhance the existing streetscape in the immediate or broader locality and is inconsistent with the desired future character of Floreat as espoused in LPP 3.1.

  2. The applicants asserts that the relevant streetscape is marked by significant diversity and that the proposed development will not affect the streetscape in any material sense.  The applicants submit that the existing streetscape will be improved as the existing steel gates that intrude visually in the streetscape will be replaced by a high quality structure that will be compatible with the existing style, structure and material of the existing dwelling.

  3. The Tribunal had the benefit of expert evidence from Mr Malcom MacKay an architect and urban designer, called on behalf of the applicants, and Mr Joe Algeri, a town planning consultant, called on behalf of the respondent.

  4. In oral evidence, both experts agreed that the relevant streetscape, for the purposes of this application, is Peebles Road extending from the intersection of Crosby Street and Peebles Road to the intersection of Kenmore Crescent and Peebles Road.  It was also accepted that a portion of Peebles Road, which includes the subject land, is visible for some distance down South Banff Road.  The streetscape as defined by the planning experts accords with the definition of 'Streetscape' in Part 6 of the Scheme.

  5. Mr Mackay is also of the view that characteristics of the North Floreat precinct inform the character of 'the place', which, Mr Algeri did not take issue with.[12]

    [12] The area, defined by Mr Mackay as the 'North Floreat precinct' is the part of Floreat bounded by Grantham Road, Selby Street, Cromarty Road and Empire Ave.

  6. Both experts agree that the primary street setback to the dwellings (9 metres) in the relevant section of Peebles Road (as describe above) are broadly consistent and that the '[g]arden Suburb-style streetscape qualities' largely remain intact.  The divergence in opinion arises in respect the extent of intrusion of other buildings and structures located within the 9 metre street setback and their impact on the streetscape.

  7. Mr Mackay accepts that there are more buildings that are setback 9 metres than project forward of the 9 metres, but argues that the gardenesque quality of the street has diminished over time with the introduction of different treatments, such as front fences in various forms, dense vegetation, porticos and carports, within the 9 metre street setback, which, in his opinion, has resulted in a 'greater sense of enclosure [of] the front yard'.[13]  Mr Mackay considers the proposed development to be reflective of the character of the existing streetscape because, in his view, 'the streetscape [is] relatively diverse in regards to the built form and the street interface'.[14]  Although, he accepts that carports are not a dominant characteristic of the relevant streetscape but considers there to be a sufficient numbers in the North Floreat precinct area for carports be a characteristic of 'the place'.

    [13] ts 23, 12 November 2020.

    [14] ts 52, 12 November 2020.

  8. Mr Algeri holds the view that the principles of the '[g]arden Suburb­style streetscape' with large front setbacks free from built form is largely intact in the relevant section of Peebles Road, notwithstanding isolated examples of buildings located within the 9 metre street setback area.  He agrees that the use of the front yard area has diversified over time to include dense vegetation and front fences, which he acknowledges does to some extent impact on the openness of the street.  Based on this assessment of the streetscape of Peebles Road, Mr Algeri considers the proposed development to be inconsistent with the prevailing character of the streetscape.

  9. Mr Mackay, in his assessment also considered the broader locality, namely the North Floreat precinct, and gave the following explanation for doing so:

    I took the view that this wasn't just about the streetscape of standing in one or two selected spots outside the - the subject house.  It's about getting an understanding of the streetscape in the - the context of the - the locality which is why I broadened it out.[15]  

    [15] ts 35, 12 November 2020.

  10. Mr Mackay identified, within the North Floreat precinct, 'at least 102 examples of single dwellings with structures (a garage, carport or other shelter over the driveway) that extended within 9m of the primary street boundary (or within 4.5m of the secondary street)'.[16]  In oral evidence, the planning experts guesstimated this to be approximately 20 per cent of lots within the North Floreat precinct.

    [16] Witness statement of Malcolm MacKay dated 28 October 2020 (Exhibit 8 para 6.3).

  11. Mr Mackay and Mr Algeri agreed also that the North Floreat precinct remains broadly consistent with the streetscape qualities observed in Peebles Road.

  12. Both planning experts agreed that the proposed development is not consistent with the 'desired future character' as contemplated in LPP 3.1, although Mr Mackay qualified his response saying that he did not necessarily agree that the desired streetscape character as expressed in LPP 3.1 was appropriate.  Mr Mackay criticised the basis of the policy which, in his view, fails to achieve a balance between seeking to retain the character of the Floreat Precinct with meeting the current and future needs of the local community and considers LPP 3.1 'to be fundamentally flawed in its statement of desire future character of Floreat'.[17]  Mr Mackay, in his witness statement, made the following statements:[18]

    5.16… LPP 3.1 attempts to 'turn the clock back' away from the current character.  The desired future character seeks to reinstate the original character of 'low-scale' (single-storey) houses with large, open, unfenced, front gardens.  This is at odds with the prevailing scale of recent development.

    5.17LPP 3.1 seeks to reduce the apparent height of two-storey houses so that they read more as single-storey houses.  This is at odds with the prevailing scale of recent development. 

    5.18LPP 3.1 seeks 'open' front gardens.  This contradicts the tendency evident in the existing streetscape, towards defining front gardens through fencing and hedging.

    5.19The description of the desired future character for Floreat in LPP 3.1 is inherently contradictory in regard to the streetscape and aims to 'maintain streetscape consistency' whilst simultaneously referring to 'varied and high quality architecture'.

    5.20LPP 3.1 seeks to relocate garaging at the rear of properties when in most cases there is no vehicular access to the rear, or to the side of properties, where, in the case of existing buildings, there is insufficient space.

    5.21The reality is that LPP 3.1 cannot undo what has already been done.  And, applying more onerous restrictions will not make any significant difference to the character of the place.  Furthermore, LPP 3.1 does not support contemporary community needs in regard to the functionality of housing.

    [17] Witness statement of Malcolm MacKay dated 28 October 2020 (Exhibit 8 paras 5.4 and 5.22).

    [18] Witness statement of Malcolm MacKay dated 28 October 2020 (Exhibit 8 paras 5.16 to 5.22).

  13. Mr MacKay criticism of LPP 3.1 is, in essence, an attack on the veracity and integrity of LPP 3.1.

  14. For a policy to be given weight, it must be tested against the criteria set down in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR(WA) 1 (Permanent Trustee).  The test includes, among other criteria, whether it is based on sound town planning principles.[19] 

    [19] The test is:  (a) whether it is based on sound town planning principles; (b) where it is a public, rather than a secret; (c) whether it is a public policy conceived after considerable public discussion; (d) the length of time that the policy has been in operation; and (e) whether it has been continuously applied.

  15. The Tribunal does not share the concerns raised by Mr Mackay for the following reasons.  Firstly, a number of concessions were made by Mr Mackay on the interpretation and application of LPP 3.1 during cross­examination with Mr Mackay accepting that LPP 3.1, in general, did not constrain or try to prevent new development that would meet the needs and expectations of the community.  The notable exception maintained related to scenarios that involved existing dwellings that do not have any garaging of vehicles, or where additional garaging is required.  

  16. Secondly, LPP 3.1 has been adopted pursuant to cl 4 of the deemed provisions, which clearly sets out advertising procedures for making local planning policy, and has been recently reviewed in April 2020. As such, it is reasonable to conclude that the aspirations, needs and expectations of the community are borne out in LPP 3.1.

  17. Thirdly, a number of Mr Mackay's concerns were based on his philosophical viewpoint on the design approaches elucidated in LPP 3.1, such as, the 'stepping back of upper storey walls', which in his mind is 'more nostalgia than practicality' as it is reaching back to try and create a streetscape that reads as being predominantly single storey.[20]   The fact that Mr Mackay's views do not align with the vision ensconced in in LPP 3.1 does not support the position that LPP 3.1 is fundamentally flawed.

    [20] ts 45, 12 November 2020.

  18. The Tribunal is satisfied that LPP 3.1 is based on sound town planning principles, and as the applicants have not challenged any of the other criteria set down in Permanent Trustee, the Tribunal, considers LPP 3.1 fulfils the criteria set out in Permanent Trustee and as such, considerable weight should be afforded to it in the determination of this proceeding.

  19. For the following reasons, the Tribunal concludes that the proposed development is not consistent with LPP 2.3 and LPP 3.1.

  20. In relation the assessment of existing streetscape character, the Tribunal relies on the evidence of both planning experts as their conclusions on the fundamental elements of the streetscape are similar.  The relevant section of Peebles Road has largely retain the '[g]arden Suburb-style' characteristics that both policies seeks to preserve and enhance.  There is a consistent street setback pattern to the dwellings, which is observed by the planning experts to accord with the 9 metre primary street setback requirement of the Scheme.  The area between the street and the dwelling is characteristically developed as open gardens, although there are instances in the street where carports, front fences and porticos intrude in this space.  However, carports are not a dominant element in the existing streetscape of Pebbles Road, notwithstanding there are two properties (No 3 and No 4 Peebles Road) in the immediate vicinity that have a double carport constructed within the front setback area. 

  21. The Tribunal accepts that to some extent that the open nature and gardenesque quality of the street has diminished over time with the introduction of different treatments, such as front fences in various forms, dense vegetation, porticos and carports, within the 9 metre primary street setback.  The existing front fence and dense screening vegetation on the subject lot is illustrative of this deterioration.  However, these intrusion are not dominant elements in the existing streetscape and at present, the integrity of the '[g]arden Suburb­style' characteristics prevail in the existing streetscape.  The Tribunal is not persuaded that this is a situation where the 'horse has bolted'.[21]

    [21] Tooth and City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198 and Spectator Investments Pty Ltd and the City of Joondalup [2006] WASAT 232.

  22. Mr Algeri in cross­examination conceded that there will be certain vistas along Peebles Road, as observed on the view, where the proposed carport would not be visible but in his opinion this did not lead to a conclusion that the proposed development is acceptable.  The Tribunal agrees with Mr Algeri.  Here, the proposed carport will add a further disruptive element to a reasonably consistent streetscape, which will further diminish the openness and gardenesque quality of the existing streetscape.  The proposed development is not respectful of the established character of the street, fails to maintain the openness of the streetscape and increases the visual bulk and dominance of carport structures on the streetscape and as such, the Tribunal considers the proposed development to be inconsistent with the intent and objectives of LPP 3.1.

  23. Further, the planning experts both agreed that the proposed development is not consistent with the 'desired future character' as contemplated in LPP 3.1.  The proposed development fails to meet the following three design criteria as specified in the 'Desired Future Character' for Floreat in LPP 3.1:

    •Development shall be constructed to maintain the traditional street setbacks … to preserve the original open nature and gardenesque quality that the precinct was designed for;

    …

    •New development shall create and enhance open landscaped front gardens within the street setback area to maintain the green character of the streetscape and the precinct;

    ...[and]

    •New development shall reduce the impact of parking structures on the existing streetscape by ensuring that such structures are located at the rear and side of properties.

  24. The proposed development is clearly discordant with the desire future character of the Floreat Precinct as it is proposed to be constructed within the traditional street setback, which will, together with the existing front fence and dense vegetation, further diminish the openness of the streetscape and increase the adverse visual impact of carport structures in the streetscape.

  25. The question of whether in the circumstances of this case there is a cogent reason or sound basis to depart from the policy will be discussed later in these reasons under the heading - Should discretion be exercised to permit a variation to the 9 metre minimum primary street setback set by cl 26(1) of the Scheme.

Is the development compatible with its setting and the amenity of the locality?

  1. The respondent says that the relevant section of Peebles Road remains 'a good example of the archetypal or historic garden suburb with open landscape areas in front of dwellings well set back from the street' and/or landscaped gardens behind open style fencing or visually permeable fencing in front of dwellings, which are well set back from the street.[22]  The respondent argues that although there are examples of carports in the primary street setback in the relevant section of Peebles Road and within the wider locality, those examples are isolated and do not alter the character of the relevant streetscape.  The respondent contends that the proposed development will be an unwelcome and unjustified intrusion into the general setting and will have an adverse impact on the amenity of the locality 'through its incremental introduction of built form into the desired open street setback'.[23]

    [22] Respondent's statement of issues, facts and contentions dated 22 September 2020 (Exhibit 2 page 11).

    [23] Respondent's statement of issues, facts and contentions dated 22 September 2020 (Exhibit 2).

  2. The applicants argue that the relevant streetscape is diverse and is not a good example of the garden suburb in Floreat as it is marked by an unattractive development at No 8 Peebles Road, a patchwork of different gardens, fence and walls, and in the immediate vicinity there are two carports within the primary street setback area.  The applicants submit that the streetscape will be improved by the removal of the steel gates that visually intrude into the streetscape, and the carport will otherwise be shielded from view by the existing vegetation on the subject land and the large verge tree on No 9 Peebles Road. 

  3. For the reasons expressed at [50] – [55], the Tribunal does not consider the proposed development to be compatible with its setting, assessed both in terms of the existing streetscape and the likely future streetscape.

  4. 'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and include the present and likely future amenity'. The amenity of the locality, including the character of the locality, is one of the matters specified in cl 67 of the deemed provisions to which due regard is to be given in the consideration of an application for development approval.

  5. The Tribunal does not agree with the applicants' assertion that the amenity of the streetscape will be improved through the removal of the steel gates and that the carport will soften the appearance of the existing garage.  To the contrary, the addition of the carport in the primary street setback will further compound the already enclosed nature of the subject land resulting in the further deterioration of the openness and gardenesque quality of the relevant streetscape, and as such, the Tribunal considers that the proposed development will have an adverse impact on the visual amenity of the relevant streetscape.

Does the development demonstrate compliance with R-Code design principle 5.1.4 with respect to the provision of open space?

  1. The applicants do not dispute that the proposed development does not satisfy deemed-to-comply provisions cl 5.1.4 C4 of the R-Codes and therefore, the development is to be assessed against the respective design principles for 'Open Space', which states as follows:

    P4Development incorporates suitable open space for its context to:

    •reflect the exiting and/or desired streetscape character or as outlined under the local planning framework;

    •provide access to natural sunlight for the dwelling;

    •reduce building bulk on the site, consistent with the expectations of the applicable density code and/or as outlined in the local planning framework;

    •provide an attractive setting for the buildings, landscape, vegetation and streetscape;

    •provide opportunity for residents to use space external to the dwelling for outdoor pursuits and access within/around the site; and

    •provide space for external fixtures and essential facilities.

  2. There is no contest that the proposed development provides access to natural sunlight for the dwelling, opportunity for use of external space to the dwelling for outdoor pursuits and access about the site, and space for external fixtures and essential facilities.

  3. The respondent submits that the proposed development does not demonstrate compliance with the following three aspects of the design principle.  Firstly, the proposed development does not reflect the existing and/or the desired streetscape character as outlined in the local planning framework for the reasons expressed in issue 1.  Secondly, the proposed development does not reduce the building bulk on the site consistent with the expectations as outlined in the local planning framework.  Thirdly, the addition of a double carport in the 9 metre primary street setback area will reduce the attractiveness of the setting for the buildings, landscape, vegetation and streetscape and is contrary to the concept of the garden suburb which is promoted by the planning framework.

  4. The applicants contend that the proposed development does demonstrate compliance with the design principle as the proposed development is not inconsistent with the diverse streetscape presently existing and as such, will not adversely affect the attractiveness of the streetscape.  Further, the applicants contend that the attractiveness of the existing building will be improved by the inclusion of a quality structure that is compatible with the existing dwelling, which together with the visually permeable gate, will assist in reducing the visual impact of the existing garage door on the streetscape.  With respect to the bulk issue, the applicants submit the three percent differential between the deemed-to-comply requirement of 55% open space on land coded R12.5 and the open space calculation of 52% provided for the proposed development (which equates to 25.7m² in area) invokes a general application of general discretion, particularly in the circumstances where 'it's not bulk in the sense of enclosed space but its open space under a cover of the carport'.[24]

    [24] ts 67, 12 November 2020.

  1. Part 2 of the R-Codes addresses the approval process and identifies that where a proposal does not meet deemed-to-comply provision(s) of the R-Codes and addresses design principle(s), the decision-maker is required to exercise judgment to determine the proposal.[25]  In the exercise of judgment, subject to cl 2.5.2 and cl 2.5.3 of the R-Codes, the decision-maker is to consider the merits of proposals, having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes.[26]  Clause 2.5.1 of the R-Codes provides further direction and states:

    …

    The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed­to­comply provision(s).

    [25] Clause 2.4 of the R-Codes.

    [26] Clause 2.5.1 of the R-Codes.

  2. The Tribunal finds that the proposed development does not demonstrate compliance with cl 5.1.4 P4 of the R-Codes for the following reasons. Firstly, the proposed development does not reflect the existing or desired streetscape as outlined in LPP 3.1 for the reasons expressed above at [50] – [55].

  3. Secondly, although the planning experts agree that the proposed development, of itself, increases building bulk on the site, the third dot point of the design principle requires assessment of the proposed development in the context of whether the open space as proposed assists in reducing building bulk on the site consistent with the expectation of the applicable density and/or as outlined in the local planning framework.[27]  The expectation in the Floreat Precinct is that setbacks to the dwellings/built form from the street will provide for extensive landscaping in the front garden in order to retain the green character of the suburb.  Given the setback of the carport from the primary street boundary, it cannot be said, that the open space provided will assist in reducing the building bulk of the proposed development, to be consistent with the expectations of the Floreat Precinct.  Furthermore, the openness of the streetscape will be further diminished as the presentation and visibility of the dwelling and garden area from some vistas along Peebles Road will be obscured by the proposed development, which is inconsistent with the design aspect of providing an attractive setting for the buildings, landscape, vegetation and streetscape.

    [27] 'Open space' is defined in the R-Codes at page 44 as '[g]enerally that area of a lot not occupied by any building … but excludes: … covered car parking spaces[.]'.

  4. I conclude in relation to this issue that the proposed development does not demonstrates compliance with design principle cl 5.1.4 P4 Open Space and as such, does not satisfy the relevant objectives of the R­Codes.

Should discretion be exercised to permit a variation to the 9 metre minimum primary street setback set by cl 26(1) of the Scheme?

  1. The starting point for the assessment of the merits in this review is the Scheme requirement for a 9 metre setback from the primary street boundary within the Floreat Precinct.[28]  Notwithstanding this provision, the Scheme provides discretionary power to approve development that does not comply with the minimum street setback requirement.[29]  

    [28] Clause 26(1)(b) of LPS 1.

    [29] Clause 34(2) of LPS 1.

  2. The Scheme does not provide any specific provisions guiding the exercise of discretion for 'non-complying applications', other than those matters that arise for consideration under cl 67 of the deemed provisions as set out in [23] above, which includes any local planning policy for the Scheme Area.[30] Further, cl 3(5) of the deemed provisions requires the local government (and the Tribunal on review) to have regard to each relevant local planning policy to the extent that the policy is consistent with the Scheme. The respondent has adopted LPP 3.1 pursuant to cl 4 of the deemed provisions. LPP 3.1 includes a provision that relates to the consideration of non-complying applications for street setbacks as prescribed in the Scheme, which sets out additional matters that the decision-maker may have due regard to in the consideration of such an application. These matters are set out in [25] above.

    [30] Clause 34(1)(a) of LPS 1.

  3. As articulated in Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15 at [99], the Tribunal in the exercise of discretion is:

    … guided by the planning principles that find expression in the policies forming the planning framework, but will depart from the application of those planning principles where there is a cogent reason for doing so in the circumstances of the case[.][31]

    [31] See also Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37]; Southern Forest Developments Pty Ltd and Western Australian Planning Commission [2019] WASAT 125 at [30]

  4. As Baker J expressed in Clive Elliot Jenning & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 at [24]:

    … the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application[.]

  5. As pointed out by Nicholson J in Falc Pty Ltd and Anor v State Planning Commission (1991) 5 WAR 522, 'the function of the Tribunal is to have regard to that policy but to exercise its discretion in relation to it in the light of the evidence in the particular case'. Although his Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal.

  6. In addition as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182]:

    While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one.  If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle.  A broad range of considerations may be relevant in that context.

  7. So too, in this case, having regard to the principles in relation to the application of planning policy, the question that the Tribunal must determine in the exercise of planning discretion is whether there is any cogent reason or sound basis to depart from the application of the planning principles that find expression in LPP 3.1.

  8. Mr Bennett presented essentially five arguments as to why the LPP 3.1 should be departed from in the circumstances of this case.

  9. Firstly, Mr Bennett explained to the Tribunal that the proposed carport will increase the enjoyable use of the premises at 7 Peebles Road as currently, the driveway is fully exposed to 'the Elements' and the existing street tree, described as 'a thin sliver of a Jacaranda tree', provides no shade whatsoever and will be unlikely to provide shade or cover for at least five to ten years'.[32]

    [32] ts 13, 12 November 2020.

  10. Mr Bennett told the Tribunal that there was a need for the carport to protect the additional vehicles that he and his wife owns from the heat and damaging effect of the Western Australian summers, as well as providing shelter for his children's vehicles when they visited with his grandchildren.

  11. It is settled law that the personal circumstances or desires of an applicant are generally not relevant planning considerations:  Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115; (2003) 127 LGERA 36 at [181]; Russell v State Planning Commission (1984) 53 LGRA 403 at 408-9 (Matheson J); Antunovich and City of Stirling [2011] WASAT 90 at [37].

  12. As the Tribunal expressed in Alcock and Town of Claremont [2013] WASAT 83 at [50] 'personal preferences of landowners should not defeat a broader public interest in orderly and proper planning' and whilst a landowner's desire to maximise residential amenity is certainly a relevant consideration in the exercise of planning discretion, the amenity expectations expressed by Mr Bennett, particularly given that the existing dwelling incorporates a double garage, are unreasonable in the context of the applicable planning framework. The applicants' personal circumstances is not a cogent reason to depart from the application of the planning policy in the circumstances of this case.

  13. Secondly, the applicants attempt to argue that the planning principles underpinning LPP 3.1 are flawed.  The Tribunal does not accept this argument for the reasons articulated at [45] - [49].

  14. Thirdly, the applicants argue that the practicality of achieving the desired location for parking structures at the rear and side of properties, as specified in LPP 3.1, is 'rarely capable of achievement' in Floreat and certainly not on the subject land as there is no rear rights-of-ways, no rear access and no side access available.[33]  As the planning experts agreed in oral evidence, the intent of this provision of LPP 3.1 is to reduce the visual impact of parking structures on the existing streetscape by discouraging parking structures in the primary street setback area.  The Tribunal accepts that within the Floreat Precinct, developments that seek to retain the existing dwelling and accommodate additional parking structures will, more than likely, face site constraints that limit the ability to locate parking structures to the rear and side of existing dwellings.   The decision-maker in the consideration of such applications, such as is the case in this instance, will need to determine whether, in the circumstance of the particular case, there is a cogent reason to depart from this policy requirement.

    [33] Dot point 5 of Desired Future Character of LPP 3.1 specifies that 'New Development shall reduce the impact of parking structures on the existing streetscape by ensuring that such structures are located at the rear and side of properties'.

  15. The Tribunal acknowledges that, in this instance, it is practically not possible to satisfy the requirement of LPP 3.1 to locate a new parking structure at the rear or side of the property due to the existing built form on site.  However, given the Tribunal's findings in respect issues 2, 3 and 4, the Tribunal does not consider there to be a cogent reason to depart from this requirement of the policy in the circumstances of this case. 

  16. Fourthly, the applicants argue that there is already a considerable number of carports located within the primary street setback area in the relevant streetscape and in the broader locality, and that an additional carport is not significant in that context.  Further, the applicants submit that the proposed development will have a positive impact on the streetscape because it will soften the appearance of the existing garage, and will result in less vehicles parking on the verge, which they submit, will have the effect of opening up the street.  

  17. The Tribunal does not agree with the applicants' characterisation of the relevant section of Peeble Road for the reasons expressed at [50] - [55].   Further, the fact that there other contrary examples of development that undermine the effect of the policy, does not mean the policy has no further work to do.  As the Tribunal has previously observed, in Forte and Town of Claremont [2013] WASAT 35; (2013) 84 SR (WA) 89, at [49]:

    Whether or not the respondent has approved other development over the years 'in error' we are not bound to follow that lead, although we acknowledge that such results must influence (but not control) judgments to be made as to the surrounding character of the immediate neighbourhood.  However, whether any proposed development 'makes the situation worse' is often relevant to the exercise of discretion in planning matters (cf, for example, Piva v Stonnington CC [2009] VCAT 1089 at [36]; Kominos & Ors v Boroondara CC [2011] VCAT 982 at [35]). And, in Hawkins and City of Joondalup [2008] WASAT 64 the Tribunal noted, at [66] - [67]:

    … [A]s the Tribunal said in Hopkin v Shire of Serpentine-Jarrahdale (2006) 46 SR (WA) 84 (at 91):

    [51]Even if examples could be provided of departure by the respondent Shire from its policies such cases would not justify a further departure.  In Smart v Barossa Council [1999] SAERDC 29 (cited with approval in this Tribunal in Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232, at [40] and Sweeney v Shire of Busselton [2006] WASAT 277 at [39]) the court said, at [9]:

    Trite as it may be to say so, 'two wrongs do not make a right', or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions.

    Further, the Tribunal has emphasised that it can be a proper regulatory response to 'hold the line' against further inroads to a planning standard (if there be any):  see Tooth v City of Subiaco (2005) 41 SR (WA) 198.

  18. As stated earlier in these reasons, the Tribunal does not consider that the 'horse has bolted' and considers that in this instance, it is appropriate to 'hold the line' against further deterioration of the streetscape.

  19. As indicated earlier, the planning principles that find expression in a relevant planning policy will be departed from where there is a cogent reason or sound basis to do so in the circumstances of the case.  The Tribunal, for the reasons explained above, does not consider that there is a cogent and adequate reason to depart from the planning principles expressed in LPP 3.1 in the circumstances of this case.

Conclusion

  1. Under s 27(2) of the State Administrative Tribunal Act 2004 (WA), the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to permit a variation to the minimum 9 metre primary street setback requirements specified in cl 26(1) of LPS 1.

  2. The Tribunal in considering the substantial merits of this particular case, considers the proposed development to be inconsistent with the planning principles found in the local planning policies adopted to guide discretion in respect to non-complying applications where a variation is sought to the 9 metre minimum setback prescribed by cl 26 of LPS 1 and finds that there is no cogent reason or sound basis to depart from LPP 2.3 and LPP 3.1 in the circumstances of this case.  Further, the proposed development is not compatible with its setting, will result in the further deterioration of the openness and gardenesque quality of the relevant streetscape and does not demonstrate compliance with design principle 5.1.4 of the R-Codes.  Therefore, for the reasons set out above, the Tribunal declines to exercise discretion to approve the proposed development.  Consequently, the proposed development warrants refusal.

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 the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS M CONNOR, MEMBER

10 FEBRUARY 2021



(m)      the compatibility of the development with its setting, including –

(i)        the compatibility of the developments with the desired future character of its setting;
  And

(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]

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Cases Citing This Decision

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Cases Cited

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Tooth v City of Subiaco [2005] WASAT 317
Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232
BESTRY PROPERTY GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 15