Cantelo and City of Stirling
[2006] WASAT 339
•23 NOVEMBER 2006
CANTELO and CITY OF STIRLING [2006] WASAT 339
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 339 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:165/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MR J JORDAN (MEMBER) | 23/11/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER CANTELO CITY OF STIRLING |
Catchwords: | Town planning Development Parking of commercial vehicle Vehicle parking space in front setback of grouped dwelling Truck of 3.2 tonnes Parked truck extending beyond property boundary into road reserve No screening of parked vehicle Impact on streetscape Truck movement before prescribed starting time of 7 am |
Legislation: | City of Stirling District Planning Scheme No 2, cl 2.2.9, cl 2.2.9.1 Metropolitan Region Scheme |
Case References: | Nil Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CANTELO and CITY OF STIRLING [2006] WASAT 339 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 23 NOVEMBER 2006 FILE NO/S : DR 165 of 2006 BETWEEN : CHRISTOPHER CANTELO
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development - Parking of commercial vehicle - Vehicle parking space in front setback of grouped dwelling - Truck of 3.2 tonnes - Parked truck extending beyond property boundary into road reserve - No screening of parked vehicle - Impact on streetscape - Truck movement before prescribed starting time of 7 am
Legislation:
City of Stirling District Planning Scheme No 2, cl 2.2.9, cl 2.2.9.1
Metropolitan Region Scheme
(Page 2)
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr S Rodic (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of Stirling
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The City of Stirling refused an application by Mr Christopher Cantelo for retrospective development approval for the parking of a commercial vehicle, a 3.2 tonne dual cab truck, in the front setback of the front grouped dwelling at 126A Herbert Street, Doubleview.
2 The City considered there would be an adverse impact on the streetscape because of the lack of screening and because the vehicle extended beyond the property boundary. The City was also concerned that the truck would leave the premises before the 7 am starting time prescribed in its town planning scheme.
3 Mr Cantelo said the vehicle would have no adverse impact on the street or locality. He said that the vehicle was necessary for his livelihood and he had to be on site at work by 7 am so must leave before then.
4 The Tribunal has found that, while the truck was larger than a vehicle usually found in residential areas, not sufficient information was provided to establish the impact on the streetscape. Of particular concern to the Tribunal, however, was that the truck, when parked, extended beyond the front boundary of the land into the road reserve. The Tribunal has determined that it will not endorse the granting of a development approval for the parking of a commercial vehicle when it is necessary to effectively appropriate part of a public road reserve for private use. The application for review was therefore dismissed.
Introduction
5 Lot 627 on the eastern side of Herbert Street, Doubleview has on it two grouped dwellings. At the front of Lot 627 is 126A Herbert Street (Unit 1) and at the rear 126B Herbert Street (Unit 2).
6 Examination of the photographs provided by the applicant show that at the front of Lot 627 there is adjacent to the northern boundary the entrance to a common driveway to rear Unit 2 and a parking bay at the rear of Unit 1. Next, to the south, is a pillar with the two letterboxes of the two group dwellings, next to which is a 3.5 metre wide brick paved parking bay. Adjacent to the parking bay is a brick wall about 1800 millimetres high across the remainder of the front of Unit 1 and which would appear to return down the side of the parking bay to the front wall of Unit 1, providing an enclosed front yard.
(Page 4)
7 The photographs show vegetation along the front wall of Unit 1 at the rear of the parking space. There is a gap of about 1 metre between the front boundary of Lot 627 and the concrete footpath along Herbert Street. This gap is also paved with bricks between the parking bay and the footpath.
The proposal and refusal
8 Mr Christopher Cantelo (applicant) applied for retrospective development approval for the parking of a commercial vehicle in the parking bay in the front setback of Unit 1. The photographs show the vehicle parked with the tailgate in the bushes at the front of the house and the front extending into the gap between the property line and the footpath.
9 The City of Stirling (respondent) refused the application for the reasons:
"1. The proposal would have a detrimental impact on the streetscape due to the proposed parking area not being screened from the street.
2. Due to the size and scale of the vehicle it would be unable to be parked within the confines of the property boundaries.
3. The departure times would be detrimental to the amenity of the immediate locality.
4. The lot contains more than one single dwelling."
Planning controls
11 Lot 627 Herbert Street is zoned "Urban" under the Metropolitan Region Scheme and Residential R40 under the City of Stirling District Planning Scheme No 2 (DPS 2).
12 Clause 2.2.9.1 of DPS 2 refers to the parking of commercial vehicles within a residential zone. The clause states:
"No more than two commercial vehicles may be parked on a lot within a Residential zone, provided that:
(Page 5)
- (a) only one vehicle may exceed two tonnes tare weight;
(b) the vehicles are parked on a lot containing only a single house;
(c) the vehicles form an essential part of the occupation of an occupant of the dwelling;
(d) no vehicle exceeds either 2.7 metres in height or 16 metres in length;
(e) any vehicle exceeding 8 metres in length is screened from view from outside the lot;
(f) no vehicle is brought to or taken from the lot between the hours of 10 pm and 7 am;
(g) major repairs to either of the vehicles are not undertaken on the lot; and
(h) any minor repairs, servicing or cleaning of either of the vehicles are carried out in areas which are screened from view from outside the lot."
Respondent's position
13 The respondent noted that of the requirements of cl 2.2.9.1 of DPS 2, the proposed development would be in conflict with item (b) as Unit 1 was not the only house on Lot 627 and item (f), as the applicant had stated that the vehicle would depart the property prior to 7 am on Monday to Friday as he commenced work at 7 am.
14 The respondent submitted that the purpose of cl 2.2.9 was to ensure that a consistent approach was applied when assessing applications for commercial vehicle parking. It was also to ensure that an acceptable level of amenity was provided within residential areas. When the application was advertised, four submissions were received, all of which were objections.
15 The relevant points in the objections could be summarised as:
• the large commercial vehicle parked at the front of the residence substantially detracts aesthetically from the street;
(Page 6)
- • the vehicle impinging over the boundary onto the footpath is a safety concern for pedestrians and people on bicycles;
• the audible reverse warning system is annoying;
• the parked vehicle obscures the view for vehicles leaving the driveway of the group dwelling development; and
• the vehicle leaving the site early in the morning is disturbing.
16 The respondent pointed out that the commercial vehicle would be parked within the front setback and would overhang the front boundary by approximately 500 millimetres. This, it was said, may affect vehicle sight lines, creating a safety concern. The respondent went on to say that more important was the liability to the respondent should an accident, injury or death occur as the vehicle would not be wholly contained within the confines of the front property boundary. It must be said, however, that the respondent did not develop this point any further than this statement.
17 It was the respondent's submission that commercial vehicles were normally precluded from parking in medium or high density residential areas, as there would be a greater likelihood of an impact upon more residents given the density and land title differences. Clause 2.2.9.1 therefore referred to single residential lots as a preferred site for commercial vehicle parking.
18 The respondent said the bulk, size and scale of the commercial vehicle was not considered appropriate for a residential area and there was no opportunity to screen the vehicle from view from the street and neighbouring properties. It was therefore considered the parking of this commercial vehicle would be in conflict with the residential ambience of the immediate locality.
Applicant's position
19 The applicant was of the opinion that the parked vehicle made a positive visual impact and would continue to do so. How this was achieved was not explained.
20 The parking bay provided at the front of Unit 1 was described as approximately 6.5 metres in length and 3.5 metres wide. The applicant acknowledged that the vehicle would overhang the front property boundary between 150 millimetres and up to 500 millimetres. He said,
(Page 7)
- however, that this would not impinge on the footpath and so was still within the confines of "the allocated parking bay". He was of the opinion that reversing sight lines of surrounding residences were impeded to a greater degree than was created by his vehicle. Any vehicle leaving Lot 627, he said, could stop at the crossover and check before entering the trafficable area, with no visual impairment from the parked truck.
21 On departure times, the applicant said that this would be 30 minutes to 40 minutes earlier than 7 am as he was required to be at work by 7 am, which was the industry standard for commencing on site. He pointed out that he was not operating a business from the property, but it was a vehicle used on a daily basis as a means of transport to and from work. The audible reversing beeper was said to be to Australian standards for private use vehicles and was no louder than such a beeper on other local vehicles fitted with such a warning device.
22 In the view of the applicant, the objections to his truck parking were contradictory and unsubstantiated and the application should be approved.
Comment and conclusion
23 It is an established planning principle that development applied for be accommodated within the boundaries of the lot or lots from which the development is to operate. In certain circumstances, it is not unusual that incidental works beyond the boundary be required to ensure a use can proceed, such as construction of a crossover, but the extent of the particular use and the land to which it relates must be identified.
24 In this instance it is common ground that the commercial vehicle parking use, the subject of the application, would extend beyond the front boundary of Lot 627. The submissions of the parties show that the vehicle would extend beyond the boundary by at least 150 millimetres and perhaps up to 500 millimetres. It is noted that the truck would not extend as far as the footpath in the road reserve, but it is nevertheless required that part of the public road reserve be always available as part of the on site commercial vehicle parking space.
25 The Tribunal is of the view that, in the interests of orderly and proper planning, it cannot support a development application that, to be fulfilled, would require part of the public road reserve, however limited in area, to be effectively appropriated for the exclusive use of the resident of an adjacent private property. For this reason, the Tribunal will dismiss this application.
(Page 8)
26 If the truck were able to be accommodated within the lot boundaries, the question would arise as to whether the impact of the vehicle on the streetscape and local amenity would be sufficient to warrant a refusal. The parking space in the front setback could not be screened from public view by either vegetation or a wall and in the event any wall would be over height because of the 2.4 metre height of the truck.
27 Commercial vehicles of 3.2 tonnes are not usually found parked in the front setback in residential areas. One of the requirements of cl 2.2.9.1 of DPS 2 is that such vehicles be parked on a lot used for single residential purposes. The Tribunal accepts that this might reduce the potential impact of the vehicle because of the more limited residential density. A relevant consideration in a locality of more dense development is that the applicant is seeking approval to have the truck depart up to 40 minutes earlier than the time prescribed in cl 2.2.9.1. The Tribunal is of the view that this might contribute to impact on the amenity of more local households in an area of higher density.
28 The applicant's assertion that the vehicle in question would enhance the streetscape is not convincing. It might be said that any vehicle parked in the front setback detracts from the streetscape, but a truck of the type in question would be more prominent and therefore have that much more impact.
29 There was not sufficient information filed to determine the actual character of the streetscape and therefore to form a conclusion as to just what impact the truck would actually have. In any event, the Tribunal has decided to dismiss the application because the parking of the commercial vehicle would require approval to extend the use beyond the boundary of 126A Herbert Street into the public road reserve.
Orders
30 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
(Page 9)
- I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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