Bonomi and Town of Vincent
[2008] WASAT 48
•29 FEBRUARY 2008
BONOMI and TOWN OF VINCENT [2008] WASAT 48
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 48 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:332/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 28/02/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | CARLO BONOMI TOWN OF VINCENT |
Catchwords: | Town planning Application for retrospective approval Orderly and proper planning Amenity Undesirable precedent Unauthorised roller door Performance criteria Acceptable development provisions Detract from the streetscape or appearance of dwellings Carport Garage |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 214(2), s 241(1), s 252(1) Residential Design Codes of Western Australia (2002) Town of Vincent Town Planning Scheme No 1, cl 10, cl 19, cl 32, cl 38, cl 40, cl 47 |
Case References: | Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988) Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980 Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65 |
Orders | 1. The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BONOMI and TOWN OF VINCENT [2008] WASAT 48 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 FEBRUARY 2008 FILE NO/S : DR 332 of 2007 BETWEEN : CARLO BONOMI
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Application for retrospective approval - Orderly and proper planning - Amenity - Undesirable precedent - Unauthorised roller door - Performance criteria - Acceptable development provisions - Detract from the streetscape or appearance of dwellings - Carport - Garage
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 214(2), s 241(1), s 252(1)
Residential Design Codes of Western Australia (2002)
(Page 2)
Town of Vincent Town Planning Scheme No 1, cl 10, cl 19, cl 32, cl 38, cl 40, cl 47
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988)
Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980
Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Town of Vincent to refuse an application for retrospective approval for an unauthorised roller door addition to an existing carport.
2 The State Administrative Tribunal examined the respective position of the parties, the background to the application, the relevant legislative and policy provisions, as well as matters of streetscape, orderly and proper planning, amenity and precedent.
3 The State Administrative Tribunal determined that the development, as constructed with the roller door addition, was contrary to the intent of the relevant performance criteria, and in that sense, was contrary to the orderly and proper planning of the locality. Also, that its presence was inconsistent with the overall amenity of the streetscape and could, over time, create an undesirable precedent in the locality.
4 The application for review was dismissed.
Introduction
5 The application for review, dated 1 October 2007, was lodged by Mr Carlo Bonomi (applicant) against a decision of the Town of Vincent, (respondent, Council or Town) on 5 September 2007, to refuse an application for retrospective approval for an unauthorised roller door addition to an existing single house at No 118 (Lot 2) Anzac Road, Mount Hawthorn (subject land).
6 The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
7 The reasons for refusal were:
"(i) Not in accordance with the good and proper planning of the area.
(ii) Non-compliance with the Policy relating to Street Setbacks.
(iii) Setting undesirable precedent - Sought retrospective approval - inconsistent with previous approvals.
(Page 4)
- (iv) Openness of streetscape will not prevail as the roller door is a solid roller door and obstructs the front view - this is against the accepted principles."
Subject land
8 The subject land can be described as No 118 (Lot 2) Anzac Road, Mount Hawthorn. It has an area of 534 square metres with a front (and rear) boundary of 14.64 metres, and side boundaries of 36.50 metres.
9 There is an existing residence on the property which faces due south. The "as constructed" carport is set back some 0.65 metres from the front boundary to Anzac Road and is positioned towards the western extremity of the site.
Legislative and policy framework
10 The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "residential" in the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). It has a coding of R30.
11 Of relevance in this matter are:
a) Residential Design Codes of Western Australia (2002) (Codes);
b) Planning Policy No 3.1.1 - Mount Hawthorn Precinct (Policy 3.1.1);
c) Residential Design Guidelines: Policy No 3.3.4 - Anzac Locality (Policy 3.3.4); and
d) Planning Policy No 3.2.4 - Street Setbacks (Policy 3.2.4).
Respondent's position
12 The position of the respondent is outlined in its "Statement of Issues, Facts and Contentions", dated 23 October 2007. The respondent contends:
a) the unauthorised roller door is not consistent with the orderly and proper planning of the locality, or the preservation of the amenity of the locality; and
(Page 5)
- b) the roller door is non-compliant with the Town's Policy relating to Street Setbacks as carports are required to be unenclosed, except to the extent that they abut an existing dwelling. They are to be without doors or panels unless these doors and/or panels are visually permeable, such as with open grilles.
Applicant's position
13 The position of the applicant is outlined in a "Statement of Issues, Facts and Contentions", dated 6 November 2007, as prepared by Mr Tayne Evershed. The applicant contends:
a) the roller door does not contravene orderly and proper planning as it is considered to meet the relevant performance criteria of the Codes and the performance criteria of Policy 3.4.2; and
b) the roller door is compliant with the Town's Policy as it is considered to meet the performance criteria as the garage does not " … detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street".
Planning issues
14 The principal planning issues are:
1) Is the development, as constructed, contrary to the orderly and proper planning of the locality?
2) Does the development, as constructed, adversely affect the amenity of the streetscape?
3) Does the development, as constructed, create an undesirable precedent in the locality?
Assessment of the Proposal
Background
15 The background to the proposal is outlined in the written submission, dated 21 November2007, of Susannah Kendall, a heritage/planning officer of the respondent. She explains:
(Page 6)
- a) 25 July 1997: A building licence was issued for additions to the existing dwelling, including a double carport.
b) 12 October 2004: Inspection of the carport by the Town's Officers revealed a solid panel roller door. A written request for compliance with the conditions of approval was then issued by Council.
c) 2 December 2004: An application for retrospective approval was received by Council for a roller door addition to the carport of the existing single house.
d) 18 January 2005: Following a request from the applicant the matter was deferred at an Ordinary Meeting of Council.
e) 8 March 2005: At an Ordinary Meeting of Council the proposed roller door addition was refused for the following reasons:
"(a) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality; and
(b) the non-compliance with the Town's Policy relating to Street Setbacks."
f) 17 March 2005: Applicant (owner) advised to remove unauthorised roller door within 14 days or risk prosecution.
g) 9 March 2007: Applicant (owner) again advised to remove unauthorised roller door within 14 days or risk prosecution.
h) 11 April 2007: A Written Direction was issued to the applicant under s 214(2) of the PD Act.
i) 20 April 2007: A letter was received by the respondent from the applicant apologising for the delay in responding to the letter of 9 March 2007, and requesting additional information.
j) 26 April 2007: A response to the letter of 20 April 2007 was sent to the applicant from the respondent, including
- the information requested. The letter advised of the need to comply with the Written Direction issued on 11 April 2007.
- k) 15 May 2007: The Town's Development Compliance Officer contacted the applicant and was informed that an application for retrospective planning approval would be submitted for the unauthorised roller door.
l) 25 June 2007: The application for retrospective planning approval was submitted to the respondent.
m) 14 August 2007: At the Ordinary Meeting of Council it was resolved to refuse the roller door addition to the carport of the existing house for the reasons set out in [7] above.
n) 5 September 2007: A letter of refusal was forwarded to the applicant by the respondent.
o) 2 October 2007: An application for review, dated 1 October 2007, was received by the Tribunal.
Legislative and policy provisions
Town of Vincent Town Planning Scheme No 1
16 Under cl 10(1) and cl 10(2) it explains that the Scheme area is divided into precincts, and for each precinct, there is a planning policy. The subject land falls into the Mount Hawthorn precinct.
17 Under cl 19(2) it explains:
"Unless otherwise provided in, or consistent with this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes."
18 The Residential Planning Codes were replaced by the Codes in October 2002 and automatically incorporated into the Scheme.
19 The need for the planning approval is covered under cl 32(1):
"A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development
(Page 8)
- exempted by Clause 33, without first having applied for and obtained planning approval."
20 The general provisions relating to the determination of planning applications is covered under cl 38:
" …
(3) Subject to subclause (4), the Council may refuse or approve an application.
...
(5) Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to -
(a) the provisions of this Scheme and of any other written law applying within the Schedule Area including the Metropolitan Region Scheme;
(b) any relevant planning policy;
…
(d) any Statement of Planning Policy of the Western Australian Planning Commission;
…
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality; and
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
" …
(3) The Council cannot grant planning approval for a non-complying application unless -
(Page 9)
- …
(b) the Council is satisfied by an absolute majority that -
(i) if approval were granted, the development would be consistent with -
- (a) the orderly and proper planning of the locality;
(b) the conservation of the amenities of the locality; and
(c) the statement of intent set out in the relevant Scheme map; and
(a) the occupiers or users of the development;
(b) the property in, or the inhabitants of, the locality; or
(c) the likely future development of the locality."
" …
(2) In preparing a draft planning policy, the Council is to have regard to -
(a) the purpose for which the land is set aside under this Scheme;
(b) the orderly and proper planning of the locality;
(c) the conservation of the amenities of the locality;
(d) any strategies, studies or objectives adopted by the Council; and
(e) any other matters it considers to be relevant.
(Page 10)
- …
(9) A planning policy prepared under this part of the Scheme shall be consistent with the Scheme text and where any inconsistencies arise, the provisions of the Scheme text shall prevail."
23 It is clear to the Tribunal that there is a strong emphasis in the Scheme on orderly and proper planning and amenity and that, unless otherwise provided for, the development of land for residential purposes is to conform to the provisions of the Codes.
Planning Policy No 3.1.1 - Mount Hawthorn Precinct
24 The overall policy statement includes:
"1) Residential Area
All residential development is to comply with the Policies relating to Residential Design Guidelines and Residential Development."
25 The overall policy statement includes:
"2) Desired Future Character
…
Front setback areas are to be landscaped and, preferably, devoid of parking spaces. Where available, on-site parking is to be accessed from a right-of-way."
26 The overall policy statement includes:
"1) Frontage Streets
…
In nearly all the streets in Town of Vincent, there is a long-established position of streetscapes and street setbacks. This pattern is to be continued so that new development does not overpower the existing streetscape.
- …
- 6) Carports and Garages
Many dwellings in the Town of Vincent were built without provision for private motor vehicles; street-side parking and parking within street setback areas have become essential, especially where rear access to the property is not available. With increasing affluence car ownership rates have increased, as has the desire to provide a roof over them.
For the purposes of the Planning and Building Policies, 'carport' means a roofed structure designed to accommodate one or more motor vehicles unenclosed except to the extent that abuts the existing dwelling and/or a property boundary on one side, and being without a doors or panels unless these doors and/or panels are visually permeable such as with open grilles.
Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles, including open sided carports with solid doors, is deemed to be a 'garage'.
Carports are acceptable, because they allow a clear view between public street and private dwelling. Garages are not acceptable, unless they can be accommodated without obstruction to views between street and house at ground level.
Such exceptions are likely to be rare. However, all carports are to be designed in such a manner that the carport forms part of the existing dwelling.
Car parking is to be accessible from existing Rights-of-Way where (legally) available. Consequently, the Town of Vincent accepts that, where no feasible alternative exists, the street setback area may be utilised for carports and unroofed parking spaces.
All garages are required to be setback at 6.0 metres from the frontage street, or at or behind the line of the front main building wall (not open verandah, porch, portico,
- balcony and the like) of the nearest dwelling on the site, to preserve and possibly enhance the streetscape.
Carports may be permitted to be located within the front setback area, where no alternative location exists, provided its width is no more than 50[%] of the front elevation width of the existing dwelling as visible from the street.
…
Where feasible, carports within an existing setback area should be setback sufficiently clear of any window of the dwelling so as not to unduly obstruct light to that window. Car parking spaces are not to intrude into traditional verandahs."
27 Within Policy No 3.2.4 there is a specific "Aim" outlined together with the relevant performance criteria and acceptable development provisions.
28 The "Aim" of Policy 3.2.4 is:
"To setback buildings, parapet walls and carports/garages from the street to provide security, adequate space for privacy, open space and access for people and vehicles, to ensure consistent and attractive streetscapes, and enhance security for both occupants and passersby."
29 The performance criteria require new development to meet the following:
"P2 The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street."
30 The acceptable development provisions include:
" …
A2.3 Carports otherwise setback in accordance with the Residential Planning Codes.
A2.4 Garages setback at 6.0 metres from the frontage street, or behind the line of the front main building wall (not
- open verandah, porch, portico, balcony and the like) of the nearest dwelling on the site.
- … ".
31 In undertaking an assessment of the new development the following notes on page 7 of Policy 3.2.4 apply:
"Note:
1) The Acceptable Development provisions contained in the Policy Manual provide a means by which development can be 'deemed-to-comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome.
2) The above Performance Criteria and Acceptable Development is a guide for development and each proposal will still be dealt with on its merits by the Town of Vincent."
32 What is clear to the Tribunal from Policy 3.2.4 is that:
a) a carport with a solid front roller door is considered to be a garage;
b) a garage is not acceptable in the front setback area unless it can be accommodated without obstruction to views between the street and the house at ground level; and
c) that the performance criteria and acceptable development provisions are guidelines only, and that a development proposal will still be decided on its merits.
Residential Design Codes of Western Australia (2002)
33 The Codes define a carport as:
"A roofed structure designed to accommodate one or more motor vehicles unenclosed except to the extent that it abuts a dwelling or a property boundary on one side, and being without a door unless that door is visually permeable."
34 A garage is defined as:
(Page 14)
- "Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles."
35 On page 48, the Codes explain:
"Consequently it is accepted that, where no feasible alternative exists, the street setback area may be utilised for carports and unroofed parking spaces. Carports are acceptable, because they allow a clear view between a public street and a private dwelling. Garages are not acceptable, unless they can be accommodated without obstruction to views between street and house at ground level. Such exceptions are likely to be rare."
36 On page 51 the Codes explain:
"Garages are potentially dominant elements in the appearance of buildings, especially the now ubiquitous double garages on increasingly narrow fronted lots. Consequently, the Codes make provision for limiting the proportion of frontage and building façade that may be occupied by a garage. Councils may encourage the integration of garages into the design of the dwelling as a means of satisfying the performance criteria relating to streetscape."
37 Under "Streetscape Requirements", the objective of the Codes is:
"To contribute towards attractive streetscapes and security for occupants and passersby, ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings."
38 The performance criteria for the setback of garages and carports states:
"P3 The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street and vice versa."
39 The accepted development provisions include:
"A3.4 Carports within the street setback area, provided that the width of carport does not exceed 50[%] of the frontage at the building line and the construction allows an
- unobstructed view between the dwelling and street, right-of-way or equivalent.
- A3.5 Garages set back 4.5 [metres] from the primary street ... ".
40 In the view of the Tribunal, the whole tenor of the Codes is to prevent the construction of garages within the front setback; predominantly to protect the amenity of the streetscape. However, where they are allowed, the emphasis is one of ensuring that they do not obstruct the views between the street and house at ground level.
The matter of streetscape
41 The matter of streetscape is addressed in the witness statement, dated 19 November 2007, of Mr Tayne Evershed. He argues:
a) The streetscape along Anzac Road, in the vicinity of the subject site, is best described as a mixture of both "open" and "contained" streetscapes.
b) The "open" streetscapes have predominantly low front fencing and front garden areas with dwellings set back on average between 6 metres and 8 metres. Generally, no other structures such as carports or garages are within the front setback area.
c) The openness of the streetscape is principally due to the existence of rights-of-way which provide for off-street parking and associated garages at the rear of the dwelling, thus eliminating the need for these structures within the front setback area.
d) The "contained" streetscapes generally comprise 1.8 metre high solid fencing with limited or no opportunity for views between the dwelling and the street, and large side walls of other dwellings which orientate towards streets intersecting with Anzac Road. There are traditional local shops built up to the street alignment.
e) The adjoining property to the east has a solid 1.8 metre high fence and further east there are terrace style houses fronting Coogee Street with a blank two-storey gable end wall facing Anzac Road.
(Page 16)
- f) The existing front fence is 100% visually permeable and provides a significant level of openness to the street. Also, the garage is open on all sides, except when the roller door is closed, which has the effect of reducing its bulk and impact on the streetscape.
g) The garage has been carefully designed to match the form, scale and building materials of the existing character dwelling so as not to detract from the dwelling or street.
h) The garage and associated roller door are located on the western side of the subject land with the dwelling positioned predominantly on the east side. The area directly behind the garage comprises, in part, the setback of the dwelling, which ensures that views from the front bedroom, formal lounge and front porch are not obstructed by the garage. There are opportunities for views from the street back to the dwelling.
42 In the written submission of Mrs Susannah Kendall, dated 4 December 2007, in reply to the applicant's submission, she advises:
a) The Town acknowledges that the Anzac Road streetscape in the vicinity of the subject land comprises both "open" and "contained" elements.
b) The majority of the "contained" elements were established prior to the formation of the Town and associated policies.
c) The presence of the "contained" elements do not provide a precedent for ignoring current policies and development standards.
d) The solid/blankness of the garage door creates a bulky and visually imposing structure with a minimal street setback. This results in a negative visual relationship between the public realm and the subject land which has detrimental affect on the streetscape, visual amenity, character of Anzac Road and casual surveillance, regardless of the permeability of other structures within the front setback area, such as the adjacent front fence.
(Page 17)
- e) The garage is not integrated with the residence. It is therefore contrary to the performance criteria of the Codes as it detracts from the streetscape and appearance of the dwelling.
f) The applicant does not acknowledge that views from the dwelling are restricted to the eastern portion of the property and that the garage door prevents visual surveillance to the western portion of the block and any approach from this direction.
g) The photographs of examples of carports and garages within the front setback, as provided by the applicant, encompass a wide area in Mount Hawthorn. Only one example is in Anzac Road and is not within the immediate vicinity (five adjoining properties either side of the development).
h) Only one of the 11 structures identified by the applicant have been approved by the Town. The others occurred prior to the promulgation of the Town; prior to the adoption of the Town's policies or constructed illegally.
i) A review of the Town's records show that there was only one approval granted for a garage door within the front setback at No 2A, No 2B and No 2C Haynes Street, North Perth. In that instance, the garage doors were approximately 75% visually permeable.
43 The matter for consideration by the Tribunal is whether, in the particular circumstances of this case, the Anzac Road streetscape is adversely affected by the presence of the existing roller door.
The matter of orderly and proper planning
44 This matter is best addressed by assessing the proposal against the relevant provision of both the statutory and policy instruments.
45 As explained elsewhere in this review, at [32], there is a degree of flexibility available to the respondent in determining a development application on its merits under current policy. This same approach is also available to the decision-making authority under the Codes; particularly if an assessment is made within the context of the relevant performance criteria.
(Page 18)
46 In making its decision under review, the Tribunal must also have regard to relevant planning considerations (such as the Codes), but is not constrained by them.
The matter of amenity
47 Under TPS 1, "amenity" is defined as:
"[meaning] all those factors which combine to form the character of an area and include the present and likely future amenity."
48 However, in Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980 "amenity" is defined at page 5 as being:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of an area, its appearance and land uses."
49 This definition relies on the views of residents as to the quality of their environment and their individual expectations going forward.
50 In Rajneesh Foundation of Australia v Shire of Manjimup(No 2)(1985) 3 SR 65, Mr Malcolm QC (as he was then) defined "amenity" from a different perspective:
"In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given amenity will have a detrimental effect of the amenity of the locality."
51 This definition accepts the existing amenity as given, good or bad, and the likely consequences of a proposed development on that amenity as seen by individuals within the locality.
52 In this particular case, the Tribunal has no feedback from nearby residents on the impact of the development on their amenity (if any), and will rely on the submissions of the parties and the impressions gained from an on-site visit by Senior Sessional Member Graham on 5 December 2007.
The matter of precedent
53 In the witness statement of Mr Evershed, he included 11 examples in the North Perth and Mount Hawthorn localities where carports and garages with solid roller doors are built within the front setback area.
(Page 19)
- They are all essentially positioned within a metre or so from the front property boundary.
54 The matter of precedent was addressed in Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988) (Aspen)wherein it was explained that precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account in reaching a decision.
55 The approach adopted by Aspen will be continued in this review.
Conclusions
56 The application for review was lodged against a decision of the Town of Vincent to refuse an application for retrospective approval for an unauthorised roller door addition to an existing carport.
57 In undertaking this review, the Tribunal has examined the respective position of the parties, the background to the retrospective application, the relevant legislative and policy provisions, and matters of streetscape, orderly and proper planning, amenity and precedent.
58 The position of the applicant is that the existing roller door does not contravene orderly and proper planning as it is considered to meet the relevant performance criteria of both the Codes and Policy 3.2.4; particularly in respect of not detracting from the streetscape or obstructing views from the street and vice-versa.
59 The position of the respondent is that the presence of the roller door is not consistent with orderly and proper planning of the locality or the preservation of the amenity of the locality. Also, that carports are required to be unenclosed and without doors or panels unless the doors or panels are visually permeable, such as with open grilles.
60 In examining this matter, the Tribunal is concerned to determine whether the presence of the existing roller door is contrary to orderly and proper planning; whether it has a detrimental effect on the amenity of the locality and whether an approval will encourage similar developments in Anzac Road and elsewhere in the Town of Vincent.
61 On the matter of orderly and proper planning, an examination of TPS 1 shows that Council can, if satisfied by an absolute majority, approve a non-complying application in certain circumstances. This provision introduces a degree of flexibility into the decision-making process.
(Page 20)
62 Again, in the case of Council's Policy 3.4.2, it is clear that both the performance criteria and the acceptable development provisions are considered as guidelines only and that a development proposal will still be dealt with on its merits.
63 Once again there is a degree of flexibility built into the decision-making process.
64 In the case of the Codes (a so-called State planning policy), it is required by s 241(1) of the PD Act that the Tribunal "have due regard" to such a policy, but it is not bound by its provisions.
65 However, it is the view of the Tribunal that, in the exercise of this flexibility, the decision-making authority must take into account the "rationale" behind the policy.
66 In that sense, the whole tenor of both Policy 3.2.4 and the Codes is that garages are not acceptable in the front setback area unless they can be accommodated without obstruction to views between the street and house at ground level. As the Codes point out, "[S]uch exceptions are likely to be rare".
67 On the matter of streetscape, the applicant contends that Anzac Road is comprised of both "open" and "contained" elements, and that the subject land is located next to "contained" elements. These include the property immediately to the east with a 1.8 metre high wall, and then a terrace style house at the corner of Anzac Road and Coogee Street with a blank two-storey gable end wall facing Anzac Road.
68 The implication here is that the garage door is more in keeping with these "contained" elements than the more "open" aspect of other properties in Anzac Road.
69 The applicant also argues that as the garage is positioned at the western extremity of the subject land, views to the street are not impeded from the front bedroom, formal lounge or front porch. Also, that there are opportunities for views from the street back to the dwelling.
70 The respondent argues that the majority of the "contained" elements, and the examples provided by the applicant of carports and garages built close to the front site boundary, were established prior to the formation of the Town (and therefore prior to the formation of its policies). Also, that the solid roller door on the subject land creates a bulky and visually imposing structure with its minimal street setback.
(Page 21)
71 Again, it is the position of the respondent that views from the dwelling are restricted to the eastern portion of the lot and that the garage door prevents surveillance to the western portion of the lot; presumably from the street.
72 In assessing these arguments, the Tribunal is presented with a circumstance where a carport, which has been designed in sympathy with the existing residence, is positioned somewhere between 0.30 metres to 0.65 metres from the front lot boundary and is located on the western extremity of the subject land.
73 However, the placement of a roller door onto the structure automatically requires that it not be assessed as a carport, but as a garage. This change of definition brings into play a number of specific planning considerations. For instance, the acceptable development provisions of the "Streetscape Requirements" of the Codes require a garage to be set back 4.5 metres from the primary street frontage.
74 In the view of the Tribunal, the further forward the structure, the more dominant it is in the streetscape, and it is the case that when approaching the subject land from the west, the roller door does present as a bulky and non-permeable addition to the carport. In that sense, there is an obstruction to views between the street and the house at ground level until your line of sight is more or less opposite the subject land.
75 When approaching the subject land from the east, the significance of the roller door is not so obvious and views can be obtained of the dwelling through and above the permeable fencing.
76 However, it is the view of the Tribunal that, overall, the presence of the garage door on a structure positioned a minimal distance from the front boundary of the site does not meet the intent of the performance criteria of either Policy 3.2.4 or the "Streetscape Requirements" of the Codes.
77 On the matter of precedent, the Tribunal has had regard to the relative arguments of the parties with respect to examples of carports and garages with solid doors close to the front site boundary.
78 However, the Tribunal is more concerned in this instance with the likely effect that an approval could give to others seeking a similar development in Anzac Road and elsewhere in the Town.
(Page 22)
79 Keeping in mind that the definition of "amenity" in TPS 1 states "all those factors which include the present and likely future amenity", the Tribunal would concede that the amenity of the streetscape could, with similar developments in Anzac Road, be adversely affected over time.
80 One matter of concern to the applicant is that of security, or the perception of security, that would be compromised with the removal of the roller door. To that extent, the replacement of the roller door with a suitably designed visually permeable door or gate acceptable to the respondent could be considered by the applicant.
81 On balance, the Tribunal believes that the development, as constructed with the roller door addition, is contrary to the intent of the relevant performance criteria and in that sense, is contrary to the orderly and proper planning of the locality. Also, that its presence is inconsistent with the overall amenity of the streetscape and could, over time, create an undesirable precedent in the locality.
Order
82 For the foregoing reasons the Tribunal orders that:
1. The application for review is dismissed.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
0
0
4