Beste and City Of Canning
[2007] WASAT 203
•13 AUGUST 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: BESTE and CITY OF CANNING [2007] WASAT 203
MEMBER: MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 13 AUGUST 2007
FILE NO/S: DR 39 of 2007
BETWEEN: PETER BESTE
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Local government - Crossing from a public thoroughfare to private land - Review of refusal to approve a 3.5 metre wide crossover at the rear of lot onto secondary street frontage - Safety of pedestrians - Impact on amenity
Legislation:
City of Canning Town planning Scheme No 40
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 12, reg 14, reg 16
Local Government Act 1995 (WA), s 9.7(1)(a), s 9.60
Residential Design Codes of Western Australia (2002)
Result:
The application for review is allowed
The decision of the respondent is set aside and conditional approval granted
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr T Bozich (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: City of Canning
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Peter Beste applied to the State Administrative Tribunal for review of the City of Canning's decision to refuse a 3.5 metre wide crossover at the rear of Lot 422 (No 4) Burrendah Boulevard, Willetton.
The principal issues identified were:
1)Whether the safety of pedestrians in The Escarpment cul‑de‑sac would be compromised by the construction of an additional crossover to the subject land.
2)Whether the amenity of the area would be reduced.
The Tribunal was satisfied that the likely additional movements generated from use of the proposed crossover would not amount to a significant increase in trip generations in The Escarpment and that such an increase could be comfortably accommodated without causing any safety issues. The existence of the public access way at the head of the cul‑de‑sac in close proximity to the subject land was also not considered to raise any significant safety issues given that the use of the crossover and the peak period of use of the public access way were not likely to coincide. On the evidence, the Tribunal was not convinced that the quiet enjoyment of The Escarpment would be adversely affected by the additional traffic anticipated from the proposed crossover. The Tribunal was satisfied that the proposed crossover would not compromise the safety of pedestrians in The Escarpment or adversely affect the amenity of the area.
The application for review was allowed and approval granted subject to conditions.
Introduction
Mr Peter Beste (applicant) made an application to the City of Canning (City, Council or respondent) to construct a 3.5 metre wide crossover at the rear of Lot 422 (No 4) Burrendah Boulevard, Willetton (subject land) to provide access onto The Escarpment (see Attachment A).
The application was presented to the Council at its meeting of 19 December 2006. The officer's report recommended approval of the application subject to the crossover being built to the requirements of the City and all costs associated with the construction and reinstatement of gardens, lawns and reticulation being met by Mr Beste. The Council resolved not to adopt the officer's recommendation and refused that application for the following reasons:
"(i)In [sic] excess of crossovers at the end to The Escarpment, if this is allowed to be constructed.
(ii)The number of children would be at risk, as many of them play in this area posing a safety issue for parents and the children, as there is no adjacent park to play in.
(iii)The total objection of the residents in The Escarpment at the south end.
(iv)It is a major pedestrian route running between the Escarpment and Agincourt Drive, Willetton.
(v)The boat is parked at one side of the driveway in the applicant's house, with sufficient space to reverse into his property in reasonable safety. It is a large boat which would cause dangers to children via The Escarpment, if allowed to enter The Escarpment itself.
(vi)One crossover is the [sic] normal for each house unless there is a turning circle, as suggested by the objectors, to enable to [sic] the boat to be driven straight in and out.
(vii)To disrupt a quiet street because a resident in Burrendah Boulevard has a large boat and has trouble parking it, is unfair to the residents in The Escarpment."
The applicant, on 26 January 2007, made application under s 9.7(1)(a) of the Local Government Act 1995 (WA) (LG Act) to have the decision reviewed.
Subject land
Lot 422 (No 4) Burrendah Boulevard, Willetton has dual road frontage to Burrendah Boulevard and The Escarpment. The primary street frontage is to Burrendah Boulevard; however, the rear boundary of the subject land has a 4 metre wide frontage to The Escarpment. The evidence before the Tribunal indicates that there are no restrictions on the Certification of Title prohibiting access to The Escarpment.
Regulatory framework
The Local Government (Uniform Local Provisions) Regulations 1996 (WA) (LG Regulations) came into operation on 1 July 1996 and pursuant to s 9.60 of the LG Act, these regulations apply as if they are local laws made by each local government. Regulation 12 of the LG Regulations provides for "[c]rossing from public thoroughfare to private land or private thoroughfare" and states:
"1.Upon the application of the sole owner, or a majority of the owners, of private land the local government may, subject to regulation 14(2) ‑
(a)approve the construction, under the supervision of, and to the satisfaction of, the local government, of a crossing giving access from a public thoroughfare to ‑
(i)the land; or
(ii)a private thoroughfare serving the land;
or
(b)agree to construct for the applicant a crossing giving access from a public thoroughfare to ‑
(i)the land; or
(ii)a private thoroughfare serving the land."
Regulation 14 of the LG Regulations relates to the role of the Commissioner of Main Roads and has no application in this instance.
Regulation 16 of the LG Regulations, with reference to Part 9, Division 9.1 of the LG Act, provides for objections and appeals against decisions about crossings.
Issues
The respondent identified the following two principal issues for consideration in this review:
1)Whether the safety of pedestrians in The Escarpment cul‑de‑sac will be compromised by the construction of an additional crossover to the subject land.
2)Whether the amenity of the area will be reduced.
Respondent's position
The respondent asserted that many children use the immediate area of the cul‑de‑sac to play as there are no parks within the near vicinity and that the reversing of a car and large boat through the restricted back entrance of the subject land would create safety concerns.
The respondent highlighted that there is a major pedestrian access way that links The Escarpment with Burrendah Boulevard, and argued that the potential for conflict with traffic would be increased as there is no footpath along The Escarpment and pedestrians must use the road to gain access to the pedestrian access way.
The respondent contended that there was a sufficient window of time between phases of the traffic lights at the corner of Burrendah Boulevard and Karel Avenue to enable reversing into the subject land to be undertaken safely. The respondent also indicated that there were alternate solutions available, such as a "U" type driveway or the reduction of the size of the verge nib in front of the applicant's house.
The respondent submitted that The Escarpment is a quiet street servicing a small number of residential properties, and that the verge area abutting the subject land and the adjoining property (No 84 The Escarpment) had been landscaped. The respondent contended that the manoeuvring of the car/boat and the visibility of the boat at the rear of the property would negatively impact on the amenity of the street and that the construction of the additional crossover will result in the removal of a portion of the well kept landscaped area.
Statement from adjoining property owner
A written submission from the owner of the adjoining property at No 84 The Escarpment, Willetton, Mr A Whisson, was including in the respondent's evidence.
Mr Whisson argued that if approval was given to the proposed crossover there would be an excess of crossovers at the end of The Escarpment. He submitted that within a space of approximately 22 metres there are crossovers servicing seven dwellings and one public access way. He contended that the additional crossover would pose a safety issue for parents, children and users of the pedestrian access way, and would severely impinge on the amenity of the area as "this is due to the inevitable practice of the [applicant] parking on The Escarpment and not on his property".
Mr Whisson's references to alleged illegal parking of commercial vehicles on the subject land and in the immediate surrounds is not a relevant consideration in the determination of this matter.
Mr Whisson considered that the residents of The Escarpment should not be expected to provide a remedy to Mr Beste's parking problems.
Applicant's position
The applicant explained that the purpose of the crossover was to give access to the rear of the subject land principally for the storage of a boat and garden trailer, which would comfortably fit in the rear yard. He submitted that the proposed crossover was consistent with the present use of crossovers at the end of The Escarpment and gave the following reasons for requiring the rear crossover:
•Difficulty of reversing into the front driveway from a busy carriageway – due to the modifications to Burrendah Boulevard it is hazardous to reverse the boat into the subject land;
•Safety issues relating to reversing the vehicle against converging traffic in close proximity to traffic lights and bus stops;
•A power pole is located on the verge in line with the western boundary of the subject causes further difficult in reversing into the existing driveway from Burrendah Boulevard;
•Security for the boat and its contents is poor, being very vulnerable to theft and vandalism; and
•Visitor parking is restricted by the current location of the boat.
The applicant considered that it was not reasonable to deny one resident a use which is permitted to others, and argued the use of the proposed crossover would only minimally increase vehicle movements in The Escarpment and would have little or no impact on the neighbourhood. He also asserted that the proposed crossover would not increase the risks to pedestrians using the walkway as the peak periods of use, that being weekdays for travel to and from work and school, do not correlate with the anticipated use of the crossover by the applicant.
The applicant challenged the respondent's contention that there were no parks in the vicinity and pointed to "Brolga Park" which adjoins The Escarpment, and Agincourt, Burrendah and Willetton Parks, which are located in close proximity.
Mr Beste agreed that whilst it was possible to construct a "U" type driveway at the front of this property, this option was expensive and was rejected by the respondent's officer as "it is not ideal aesthetically to have a boat parked across the front of a property on a district "A" distribution road".
The nature of Burrendah Boulevard and The Escarpment
The officer's report to the Council on 19 December 2006 contains evidence relating to the nature of Burrendah Boulevard, and states as follows:
"Burrendah Boulevard is classified as a district 'A' distributor road under the City's road hierarchy and carries approximately 12 100 vehicles per average weekday. Burrendah Boulevard was originally constructed as a four lane divided road. In 2002 the City received funding from Main Roads WA under their State Black Spot Programme to reduce Burrendah Boulevard to one lane in each directions, effectively turning the kerbside land into a parking embayment (midblock) or a left turn pocket [at the approach to an intersection]. The crossover at Lot 422 (No 4) Burrendah Boulevard is located 73 metres east of the Karel Avenue – Parry Avenue – Burrendah Boulevard intersection in the same area that vehicles are required to merge into one lane and therefore there is no embayed area adjacent to the property."
A number of questions were raised by Ms Whisson at the Council meeting of the 19 December 2007 and the answers to these questions were reported to the Council meeting of 16 January 2007. Contained within this report is evidence relating to the nature of The Escarpment:
" … [the lower end of] The Escarpment services 14 residential properties with full access, and one residential property with rear access. A normal residential property generates 10 vehicles trips per average weekday, so this section of The Escarpment is estimated to carry 150 vehicles trips per average weekday generated by residents. As the Pedestrian Access Way (PAW) at the end of the Escarpment provides a link through to Burrendah Boulevard (circle route bus stops), additional traffic is likely to be generated by people being dropped off/picked up. It is estimated that The Escarpment carries no more than 250 vehicle trips per average weekday."
Tribunal's consideration
The Tribunal considers that the reversing of a boat/trailer from Burrendah Boulevard onto the subject land is a potentially hazardous situation given the traffic flows along Burrendah Boulevard together with the location of the subject land to the intersection of Karel Avenue/Parry Avenue/Burrendah Boulevard and that existing arrangements for access should be remedied.
According to the officer's report, the proposed crossover meets the requirements of the City of Canning Town Planning Scheme No 40 and the Residential Design Codes of Western Australia (2002). There was no evidence submitted disputing this assertion. Further, there are no restrictions on the Certification of Title prohibiting access to The Escarpment.
The Tribunal is satisfied that the likely additional movements generated from use of the proposed crossover would not amount to a significant increase in trip generations in The Escarpment and that such an increase can be comfortably accommodated without causing any safety issues. The existence of the public access way at the head of the cul‑de‑sac in close proximity to the subject land is also not considered to raise any significant safety issues given that the use of the crossover and the peak period of use of the public access way are not likely to coincide. On the evidence, the Tribunal is not convinced that the quiet enjoyment of The Escarpment would be adversely affected by the additional traffic anticipated from the proposed crossover. The Tribunal is satisfied that the proposed crossover will not compromise the safety of pedestrians in The Escarpment or adversely affect the amenity of the area.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent is set aside and a decision is substituted that approval is granted for the construction of a crossover at the rear of Lot 422 (No 4) Burrendah Boulevard, Willetton, as shown on Attachment A, subject to the following conditions:
(i)The crossover being constructed to the specifications and requirements of the City of Canning; and
(ii)All costs associated with the construction and reinstatement of gardens, lawns and reticulation being met by the owner of Lot 422 (No 4) Burrendah Boulevard, Willetton.
Attachment A
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
0
0
4