Chambers and City of Subiaco
[2008] WASAT 259
•4 NOVEMBER 2008
CHAMBERS and CITY OF SUBIACO [2008] WASAT 259
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 259 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:219/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (MEMBER) | 3/11/08 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The refusal of the City of Subiaco dated 15 May 2008 is affirmed | ||
| B | |||
| PDF Version |
| Parties: | GEOFFREY ROSS CHAMBERS CITY OF SUBIACO |
Catchwords: | Town planning Refusal Development of double carport between house and street Identifying primary street frontage Set backs from primary and secondary streets Car parking and vehicle access policy Streetscape policy Setbacks of surrounding development Orderly and proper planning |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 28(3), cl 39, cl 41(2), cl 78 Metropolitan Region Scheme Planning and Development Act 2005 (WA) s 252(1) Residential Design Codes of Western Australia (2008), cl 6.2, cl 6.2.3, cl 6.2.3 P3, cl 6.2.3 A3.1, cl 6.2.3 A3.3 State Administrative Act 2004 (WA), s 29(1) |
Case References: | Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Martin and City of Subiaco [2003] WATPAT 31 Nair v Town of Vincent [2004] WATPAT 217 Nicholls and Western Australian Planning Commission [2005] WASAT 40 Tooth v City of Subiaco [2005] WASAT 317 Trickey and City of Subiaco [2005] WASAT 256 Waller and City of Subiaco [2006] WASAT 328 |
Orders | 1. The application for review is dismissed,2. The refusal of the City of Subiaco dated 15 May 2008 is affirmed |
Summary | The City of Subiaco refused an application for development approval to erect a double carport in the setback between the house and Onslow Road at No 274 Onslow Road, corner King Street, Shenton Park. The City of Subiaco considered the proposed carport would be in conflict with the provisions of its town planning scheme, and its policies on residential car parking and streetscapes. ,The applicant said that because of earlier development approvals by the City of Subiaco for a boundary wall on Onslow Road and site access from King Street, the primary street frontage for the site was King Street. The development was said to satisfy acceptable development standards for setbacks and so was consistent with the town planning scheme and policies.,The Tribunal identified from its examination of the matter that the primary street frontage of the site was to Onslow Road. The development did not meet the standard setback from Onslow Road and so a relaxation of the setback standard as allowed for in the policies was required. The Tribunal found that the proposed setback reduction was greater than that provided for in the policies and a further relaxation of the policy standards would have an undesirable impact on the streetscape and set an undesirable precedent for the future development of the locality. ,The application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHAMBERS and CITY OF SUBIACO [2008] WASAT 259 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 4 NOVEMBER 2008 FILE NO/S : DR 219 of 2008 BETWEEN : GEOFFREY ROSS CHAMBERS
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Refusal - Development of double carport between house and street - Identifying primary street frontage - Set backs from primary and secondary streets - Car parking and vehicle access policy - Streetscape policy - Setbacks of surrounding development - Orderly and proper planning
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 28(3), cl 39, cl 41(2), cl 78
Metropolitan Region Scheme
Planning and Development Act 2005 (WA) s 252(1)
(Page 2)
Residential Design Codes of Western Australia (2008),cl 6.2, cl 6.2.3, cl 6.2.3 P3, cl 6.2.3 A3.1, cl 6.2.3 A3.3
State Administrative Act 2004 (WA), s 29(1)
Result:
The application for review is dismissed
The refusal of the City of Subiaco dated 15 May 2008 is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ms N Goode (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of Subiaco
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Martin and City of Subiaco [2003] WATPAT 31
Nair v Town of Vincent [2004] WATPAT 217
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Tooth v City of Subiaco [2005] WASAT 317
Trickey and City of Subiaco [2005] WASAT 256
Waller and City of Subiaco [2006] WASAT 328
(Page 3)
Summary of Tribunal's decision
1 The City of Subiaco refused an application for development approval to erect a double carport in the setback between the house and Onslow Road at No 274 Onslow Road, corner King Street, Shenton Park. The City of Subiaco considered the proposed carport would be in conflict with the provisions of its town planning scheme, and its policies on residential car parking and streetscapes.
2 The applicant said that because of earlier development approvals by the City of Subiaco for a boundary wall on Onslow Road and site access from King Street, the primary street frontage for the site was King Street. The development was said to satisfy acceptable development standards for setbacks and so was consistent with the town planning scheme and policies.
3 The Tribunal identified from its examination of the matter that the primary street frontage of the site was to Onslow Road. The development did not meet the standard setback from Onslow Road and so a relaxation of the setback standard as allowed for in the policies was required. The Tribunal found that the proposed setback reduction was greater than that provided for in the policies and a further relaxation of the policy standards would have an undesirable impact on the streetscape and set an undesirable precedent for the future development of the locality.
4 The application for review was dismissed.
Introduction
5 These proceedings involve an application by Mr Geoffrey Chambers (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision by the City of Subiaco (respondent or City) on 15 May 2008 to refuse a development application dated 25 February 2008 for the erection of a double carport at No 274 (Lot 66) Onslow Road, corner King Street, Shenton Park (site) between the house and the Onslow Road frontage. The Tribunal member conducted a view of the site, Onslow Road and King Street, accompanied by the applicant and a representative of the respondent.
Site, locality and proposed development
6 The site has an area of 510 square metres. It has a width of 15.23 metres and frontage to Onslow Road at the southern end. The lot has a 33.54 metre frontage to King Street on the western boundary. The corner is truncated.
(Page 4)
- The existing house on the lot is set back 8.96 metres from the Onslow Road frontage. Within that frontage is a paved hardstand area wide enough to accommodate two cars with a 3 metre wide crossover to King Street.
7 On the opposite corner of King Street and Onslow Road is a commercial building extending from the Onslow Street boundary over much of the lot with the King Street verge bituminised and used for parking perpendicular to the roadway. About 100 metres to the east along Onslow Road is Herbert Street, beyond which are commercial buildings. From Herbert Street along Onslow Road westward past the site are a mixture of new and old houses, and two long standing commercial buildings. The site is directly opposite the junction of Yilgarn Street with Onslow Road. King Street to the north of the site is mostly the secondary street to houses facing streets parallel to Onslow Road.
8 Proposed is the construction of a double carport 6.46 metres wide and 5.4 metres deep over the eastern section of the existing hardstand in the setback between the house and Onslow Road. The carport would be perpendicular to Onslow Road with access gained via the existing crossover to King Street. The setbacks would be 1.5 metres from the front fence, 1 metre from the front of the house, 1 metre from the eastern lot boundary and about 8.5 metres from King Street. The application sketch showed the carport with a virtually flat metal roof. The applicant submitted an alternative design he said he would accept showing a hipped roof with tiles matching the house.
Planning Framework
9 The site is zoned 'Urban' under the Metropolitan Region Scheme and 'Residential' with a density coding of R 20 under the City of Subiaco Town Planning Scheme No 4 (TPS 4).
10 Clause 12 of TPS 4 includes the following definitions:
Amenity: means all those factors, which combine to form the character of an area and include the present and likely future amenity.
Streetscape:
(a) means the total visual impression gained from any one location within a street including the natural and manmade elements; and
(b) is made up of the appearance of and the relationship between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.
11 Clause 27(4) of TPS 4 outlines matters to be considered in deliberations on development applications, including:
(a) the provisions of this Scheme …
(b) any relevant planning policies;
…
(e) any submission accompanying or relating to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenity of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure;
…
12 Clause 39 of TPS 4 requires that residential development conformed to the requirements of the now Residential Design Codes of Western Australia (2008) (Codes). Clause 6.2 of the Codes addresses streetscape requirements and cl 6.2.3 is concerned with setbacks of garages and carports.
13 The refusal of the development refers to noncompliance with the requirements of cl 41(2)(f) and (g) of TPS 4 which read:
41 AIMS AND OBJECTIVES
(1) …
(2) In considering an application for development approval in the zones to which this division applies the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the following objectives:
…
(f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock.
- (g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping.
14 Clause 28(3) of TPS 4 provides that the City cannot grant development approval for a non-complying application unless it is satisfied on certain matters which include the orderly and proper planning of the locality: (cl 28(3)(a)(i)), and the any undue adverse effect on the likely future development of the locality (cl 28(3)(b)(iii)).
15 Clauses 78 of TPS 4 provides for the making and formal adoption of planning policies. In February 2007 the City adopted Policy 3.7 Residential Car Parking and Vehicle Access (parking and access policy). The introduction, at cl 1.0, identifies hardstands and parking structures as different elements of onsite parking provision. The introduction includes the following:
The City of Subiaco recognises the desire of owners and occupiers to have reasonable access to parking for private vehicles, but intends to minimise the detrimental impact [of] inappropriately located carparking areas and carparking structures on existing streetscapes and available street parking. … Typical planning concerns include but [are] not limited to:
• …
• car parking structures which conflict with an existing pattern of building setbacks;
• …
16 The objectives of the parking and access policy include, relevantly:
2.1 To assist the development of attractive streetscapes;
2.2 To assist in the rejuvenation of degraded streetscapes;
2.3 To reduce where possible, the visibility of car parking structures from the perspective of the primary street;
…
2.5 To provide development requirement guidance to residential developers
17 Clause 7.0 of the parking and access policy provides for variation of standards as follows (relevantly):
(Page 7)
- The Council may approve a variation to the acceptable standards, location and/or access to onsite car parking requirements under one of the following circumstances:
7.1 where the nature of existing development is such that the car parking requirement cannot be provided elsewhere;
7.2 where there is, in the surrounding development, an acceptable existing pattern of parking within the street setback area (nominally greater than 50%);
…
7.5 where, in the opinion of the Council, the proposed parking arrangement would enhance the streetscape;
7.6 where there is insufficient space to enable adequate manoeuvring into a rear parking space;
…
7.9 where existing car parking has been occurring and no other alternative option exists;
7.10 in the case of corner lots without effective access to a ROW, access to car parking should be via the secondary street frontage, unless the secondary street is a distributor road or there are other traffic management reasons for locating the access off the primary street;
…
7.12 in such circumstances, and provided that no significant detriment to the streetscape is likely to result, the Council may exercise its discretion to vary standards in one of the following ways:
7.12.1 Where it is appropriate to the nature of the dwelling and the availability of publicly available street parking, the Council may reduce the number of onsite parking spaces required by the Codes.
7.12.2 In the case of a building or dwelling for which two or more spaces are required, the Council will normally allow one uncovered space to be provided within the street setback area, on a driveway serving the other space or spaces.
7.12.3 Where the relevant street is a secondary street to the lot, and the new structure is sited behind the primary street setback line or the frontage line of an existing dwelling, the Council may approve construction of an enclosed garage.
(Page 8)
18 The parking and access policy under 'definitions' states that 'surrounding development':
Means the five properties on either side of the proposed development on both sides of the street (excluding laneways/right-of-ways) that the dwelling is orientated towards. More significance will be given to surrounding development that is closer to the proposed development, particularly in the case of corner lots.
19 The City has also adopted, in November 2007, Policy 3.1 Streetscape (the streetscape policy) the objectives of which are:
1) To ensure that new development is consistent with the character and in particular the scale of existing residential development;
2) To ensure that new development is designed having regard to the issue of crime prevention and surveillance of the street and housing entrances;
3) To encourage creative and quality design solutions that meet the standards of this policy and enhance the character of existing residential areas; and
4) To protect the amenity for adjacent properties, with reference particularly to solar access, day-lighting and privacy.
20 Part 5.0 of the streetscape policy sets out streetscape standards for residential zones and these include:
5.2 Setbacks
1) The front setbacks of any development:
a) Are to be set back from the primary street at a distance no less than the 'Prevailing Street Setback'. The prevailing street setback is the setback calculated by averaging the setback of surrounding development; or
b) Should match the setback of the houses on either side of the subject property. Where the setbacks of the two adjoining houses vary, the setback should be approximately mid-way between those of the adjoining houses;
…
- Car parking structures are seen to potentially damage traditional streetscapes due to their visual dominance, especially when situated in the front setback area. On this basis, any car-parking structures (including but not limited to garages, carports, pergolas, patios and vergolas) should be located as per the City’s Residential Car Parking Policy in addition to meeting the relevant setback requirements of this policy and the Residential Design Codes.
The proposed development
The refusal
21 The respondent refused the application for reasons which can be summarised as follows:
1) The proposal did not meet the requirements of cl 27(4)(a), (b), (f), (g) and (h), cl28(3)(a) and (b) and cl41(2)(f) and (g) of TPS 4. This was because the proposal was inconsistent with the orderly and proper planning of the locality, the conservation of the amenity of the locality, established street setbacks and would set an undesirable precedent which would adversely affect the likely future development of the locality.
2) The proposal did not comply with the City's Residential Car Parking and Vehicular Access Policy.
3) The proposal did not meet the City's Streetscape Policy in relation to front setbacks.
Discussion
Previous approvals
22 In March 2006, the City granted approval for development that included on the Onslow Road frontage of the site a 1.8 metre high fence comprising a 2.25 metre length of fence permeable above 750 millimetres at both the eastern and western ends and a 9.23 metre long solid limestone wall between. Across the truncation and for 14.45 metres along the King Street frontage approval was granted for the same permeable fencing with gaps for the 3 metre wide crossover from King Street and a 900 millimetres wide gate to a path to the porch on the Onslow Road façade which provides access to the front door, also in the Onslow Road façade. The approval also included the brick paved hardstand for two cars in the Onslow Road setback. A condition of approval required the removal of the original crossover from King Street to the rear yard of the house.
(Page 10)
23 Earlier approvals had been granted for a swimming pool and deck in the backyard, and an ensuite bathroom addition to a bedroom to within one metre of the King Street frontage.
Primary street frontage
24 To assess setback requirements it is necessary to determine the primary street frontage of the site. Mr Simon Bain, a town planner, who provided submissions on behalf of the applicant, argued that the primary street for this site was now King Street. Mr Bain cited the definition of 'Primary Street' in the Codes, which states:
Unless otherwise designated by the local government, the sole or principal public road that provides access to the major entry (front door) to the dwelling.
25 Mr Bain said that, historically, access to the front door was from Onslow Road and this was then the primary street frontage. However, the City's 2006 development approval had resulted in the sole access to the front door being from King Street. The front door was also physically closer to King Street than Onslow Road. He said that King Street was now the primary street frontage. Unfortunately, the response from the City did not directly address this point.
26 Mr Bain and the applicant also referred to a letter dated 21 November 2007 from an officer at the City to the applicant in response to the first application for the carport in September 2007. The letter said that the then proposed 0.8 metre southern setback was contrary to the minimum 1.5 metre setback stipulated by the Codes and the proposed 0.8 metre eastern setback was contrary to the stipulated minimum 1 metre setback.
27 The letter informed the applicant that if he wished to proceed he needed to justify the reduced setbacks or modify the plans. The current plans considered by the respondent in May 2008 included the amendments. Mr Bain and the applicant said that this comment from the City reinforced the interpretation that the Onslow Street setback was now considered a side setback.
28 Mr Bain said the proposed development would satisfy the acceptable development standard at cl 6.2.3 A3.1 of the Codes because it would be located behind the primary street setback, which he said, was now from King Street.
(Page 11)
- It would also satisfy cl 6.2.3 A3.3 which requires carports to be set back 1.5 metres from a secondary street, which was now Onslow Road. By satisfying the acceptable development standards the carport would thereby satisfy the performance criteria for setbacks to carports at cl 6.2.3 P3 of the Codes.
29 In support of his submission, the applicant referred to the decision of the former Town Planning Appeal Tribunal (TPAT) in Nair v Town of Vincent [2004] WATPAT 217, in which historically the largest setback to a corner house was from Bulwer Street but the review was conducted with Wright Street considered as the primary street. This Tribunal does not consider that this decision assists the applicant. In that matter, the local government had previously designated Wright Street as the primary street and had granted approval for the construction of a carport behind the building line from Wright Street in the setback between the house and Bulwer Street. The matter then before TPAT was not whether a carport should be constructed but whether a door might be added to the carport making it a garage. The local government argued that Bulwer Street should once again be considered the primary street for the purposes of the assessment of the garage. TPAT did not accept that the addition of the roller door so changed the planning circumstances that a complete reversal of the explicit designation of the primary and secondary streets was warranted. TPAT determined the matter on the basis that the primary and secondary streets remain as designated by the local government when previously approving the existing carport.
30 In the instant matter there is no carport. There was also no explicit designation by the respondent that King Street is to be considered the primary street for the purposes of its 2006 approval of the hardstand in the front setback between the house and Onslow Road, even though this is identified as the least acceptable location for parking at cl 5.5 of the parking and access policy, which it is understood reflects the parking policy in place at the time.
31 A second decision cited by the applicant in support of his position was Martin and City of Subiaco [2003] WATPAT 31 (Martin). The applicant's only comment was that notwithstanding the larger setback was to Cuthbert Street, Hilda Street was determined to be the primary street. It is noted that in Martin the Tribunal was persuaded by submissions relating to the postal address, location of the main entrance and front gate, boundary length and the character and width of Hilda Street. In certain circumstances there might be a lesser setback from a primary street than from a secondary street. The Tribunal considers Martin illustrates that particular circumstances need to be
(Page 12)
- identified in each case, rather than there being a simple application of a rule, to determine which is the primary street.
32 The Tribunal has formed the view that Onslow Road is the primary street frontage for the site. Examination of the file documents reveals that the approval issued by the City in 2006 was for 'a new partially solid front fence and a visually permeable side fence'. The City characterised the February 2008 application as a proposal for 'construction of a carport in the front setback' and in its refusal, reason (f) referred to not meeting the streetscape policy in relation to front setbacks. The respondent was clearly not of the same view as the planning officer who wrote to the applicant in November 2007 because it refused the application with the amended setbacks in its May 2008 decision.
33 The respondent has defended its decision through the submissions of Ms Natalie Goode, a town planner from the City, on the basis that it maintains that the front setbacks are to be measured from Onslow Road. The Tribunal finds that, as provided for in the definition of primary street in the Codes, the respondent, while not explicitly, has, by its decisions and now in its submissions on the application for review, identified Onslow Road as the primary street and the front setback as being between the house and Onslow Road.
34 The Tribunal is encouraged to this conclusion by the front door and porch being orientated to Onslow Road, the front fence being 48.75% permeable and the truncation 100% permeable so that there remains views to and from the street, the viewing of the site revealing that the King Street façade of the house is mostly a blank wall with a setback varying from 1 metre to 4 metres, King Street streetscape comprising mostly side fences and Onslow Road serving as the primary street for nearly all of the houses in the surrounding development.
Setback
35 Having determined that Onslow Road remains the primary street, the proposed development does not satisfy the acceptable development standards for primary street setback at cl 6.2.3 A3.1 of the Codes. It is necessary therefore to weigh the development against the performance criteria at cl 6.2.3 P3 of the Codes, which requires:
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.
(Page 13)
36 Considering first views to and from the dwelling, as Mr Bain pointed out there is 9.23 metres of solid fence across the front boundary. This restricts views to the street through the sections of permeable fencing and the carport will not alter this. As to the view of the house from the street, a carport roof would obstruct part of the view of the dwelling. The applicant has offered two versions of a roof, namely a flat metal roof which would present minimal visual obstruction and a hipped roof with tiles matching the house. It is the Tribunal's opinion that, if a carport were to be approved, a hipped tiled roof would be preferable having regard to its compatibility with the design and materials of the roof of the house.
37 Dealing next with the streetscape, cl 41(2)(g) of TPS 4 identifies setbacks, roof pitches, materials, design and landscaping as matters to be considered to ensure compatibility of the development with the established streetscape. The hardstand and vehicle access have development approval and these have related landscaping. The roof design and materials of the carport were discussed in the previous paragraph. This leaves as the critical issue for consideration the setback to the proposed carport from Onslow Road.
38 The applicant considers that the setback of the carport would not detract from the streetscape and should be allowed. The respondent considers that the proposed setback would detract from the streetscape and so does that satisfy cl 6.2.3 P3 of the Codes. The respondent's parking and access policy, and streetscape policy are both concerned with, and provide, guidance on protection of streetscape character.
39 The minimum primary street setback to the building line is 6 metres for residential R20 under the Codes. Clause 5.5 of the parking and access policy lists as the least acceptable car parking structures located forward of the primary building line. The carport proposed would be forward of the primary building line. Clause 7 of the parking and access policy lists circumstances where variations may be considered. Clause 7.5 provides for a variation where it is considered the parking arrangement would enhance the streetscape. As noted above, the parties disagree on this point. Clause 7.2 provides that there may be a variation:
where there is, in the surrounding development, an acceptable existing pattern of parking within the street setback area (nominally greater than 50%)
40 Clause 5.2(1)(a) of the streetscape policy states that the front setbacks of any development:
(Page 14)
- Are to be set back from the primary street at a distance no less than the 'Prevailing Street Setback'. The prevailing street setback is the setback calculated by averaging the setback of surrounding development; …
41 At cl 3 of the parking and access policy, the definition of surrounding development includes 'five properties on either side of the proposed development on both sides of the street … that the dwelling is orientated towards'. The dwelling is orientated toward Onslow Road.
42 Ms Goode prepared a table of her analysis of parking location for the surrounding development. She concluded that the locations of car parking structures comply with the policies for all but four properties. The commercial property at the corner of King Street opposite the site was not included. She stated that the parking and access policy requires a 4 metre front setback for the development but did not reveal how she arrived at that figure.
43 The applicant and Mr Bain provided their own analysis, plus a computer generated sketch showing the location of buildings and parking structures on lots between Herbert Road to the east and Commercial Road/Fortune Street to the west with a superimposed 6 metre setback line. This analysis found that on the north side of Onslow Road the five lots east of the site to Herbert Street are at the 6 metre setback, except for one with a carport to within 2.8 metres of the front boundary. Of the five lots west of the site to Fortune Street, one is setback 1.5 metres, three 2 metres and the commercial building on the corner of King Street is at nil setback. On the southern side of Onslow Road the ten properties west of Herbert Street are mostly set back about 4 metres with one carport at nil setback and a commercial building at 7 metre setback. Mr Bain analysed 26 properties and found that 70% had reduced setbacks with an average setback of 3.3 metres.
44 Using Mr Bain's figures, but not including the six extra properties at the western end that he included, the Tribunal calculated the average setback to be 3.8 metres.
45 Clause 5.2(1)(b) of the streetscape policy also sets out that, as an alternative, front setback should match the setback of the two adjoining houses. Where these vary, the setback should be approximately midway between those of the adjoining houses. In this instance, there is a house on only one side at a 6 metre setback. Over the road the building has a nil set back but it is a commercial building.
(Page 15)
46 The proposed carport would be set back less than the standard provided in the policies at 1.5 metres from Onslow Road. The applicant, while maintaining vigorously that King Street is the primary street, argued also that discretion should be exercised in any event to allow the proposed setback because of the screening effect of the front wall, the mix of setbacks in the street with some at or near nil and because the bulk of the house is setback at near 9 metres.
47 Clause 28(3)(a)(i) of TPS 4, is directed to standards in TPS 4 and provides a reference for considering non-complying developments. The City cannot grant development approval for a non-complying application unless it is satisfied on certain matters which include the orderly and proper planning of the locality. The Tribunal has formed the view that a carport set back 1.5 metres from the front boundary would not be consistent with orderly and proper planning. Of the 20 properties in the surrounding development only three have a setback of less than 1.5 metres. This is a locality where onsite parking, and particularly covered parking, has to be fitted to an existing house. The City has adopted policies to guide assessment of applications for such development to ensure the impact on the streetscape and the amenity of the locality is managed.
48 The Tribunal's consistent approach to the application to policy has been that a policy should not be applied inflexibly. However, where a policy is properly adopted and is based on sound planning principles, it is a matter of establishing why the policy should not be applied: Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [42]. In this instance, the proposed carport would be at a setback less than the average setback established by surrounding development in conflict with the adopted policies.
49 Clause 28(3)(b)(iii) provides that approval might be considered for a non complying development where the proposed development would not have any undue adverse effect on the likely future development of the locality. The parties have addressed this point as whether precedent is a consideration.
50 The Tribunal's approach to precedent is set out in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71][77]. The test adopted from the authorities as to the circumstances when precedent becomes a consideration is, namely:
(1) That the proposed development is not in itself unobjectionable; and
(Page 16)
- (2) That there is more than a mere chance or possibility that there may be later undistinguishable applications.
51 The Tribunal has formed the view that a carport set back 1.5 metres from the Onslow Road frontage is objectionable. It would be less than the average setback allowed by the policies and would be less than the setback to most surrounding developments, for example, the five lots adjoining to the east. The Tribunal does not consider that there are any characteristics of the site, other than it being a corner and only two of eight corners in the surrounding development has a less setback, that distinguish it from other sites where owners might wish to provide a carport in the front setback. It is therefore considered that there is more than a mere possibility that there may be later undistinguishable applications. Precedent is therefore a consideration. The Tribunal considers that a precedent created in this instance would be undesirable in the future development of this locality because of the change to Onslow Road created by development encroaching further into front setbacks.
Conclusion
52 The applicant applied to the Tribunal for review of the City's refusal to grant development approval for a carport set back 1.5 metres from the Onslow Road frontage of his corner lot. In considering an application for review, the Tribunal has all the 'functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision' (State Administrative Act 2004 (WA) s 29(1)). In exercising this discretion, the Tribunal first identified that because of the particular circumstances, as set out above, Onslow Road remained the primary street frontage. The standard front setback for residential R20 development is 6 metres. Discretion is available in TPS 4, the Codes and the City's policies to relax this requirement.
53 The Tribunal has considered the issue of carports in front setbacks in three recent decisions. In each, the parking and streetscape policies applied were relevantly the same as the parking and access policies now in place. Each case included a property that had rear vehicle access and a hardstand for parking in the front setback. The Tribunal was concerned with whether to permit a carport to be developed within the front setback.
54 Trickey and City of Subiaco [2005] WASAT 256 was concerned with a single carport over an existing hardstand set back 1.6 metes from the front boundary. The Tribunal found there was no established pattern of
(Page 17)
- carports in the front setback in the streetscape and the application for review was dismissed.
55 InTooth v City of Subiaco [2005] WASAT 317, the respondent approved a rear garage but deleted approval for a carport over an existing hardstand in the front setback. There was no established pattern of carports in the front setback in the street and the application for review was dismissed.
56 Waller and City of Subiaco [2006] WASAT 328 was for a double carport in the front setback 3 metres from the front boundary. The Tribunal dismissed the application finding that the proposal would be inconsistent with a streetscape of no carports in front of houses which were set back a consistent 9 metres to 11 metres.
57 These judgments illustrate the planning significance of established streetscape and the application of the relevant policies in determining whether a relaxation in standards should be allowed. The surrounding development in Onslow Road creates a streetscape punctuated by carports and building within the standard front setback, including a commercial building at a nil setback. The City's streetscape, and parking and access policies allow for averaging of existing setbacks where relaxation from the standard is to be considered. An examination of the development pattern revealed that, while a single carport on the site might not be, the proposed double carport would be closer to Onslow Road than the discretionary average setback allowed by the policies and closer than all but three properties. The proposal would require a concession on the concession already provided for in the policies. The Tribunal considered that this would detract unacceptably from the streetscape. It was also found that the proposal could not be readily distinguished and so might be cited as a precedent which would have an undesirable effect on the future development and amenity of the locality in conflict with the planning objectives of TPS 4.
58 Following its deliberations on this matter, the Tribunal has decided to dismiss the application.
Orders
59 The Tribunal therefore orders:
1. The application for review is dismissed
(Page 18)
- 2. The refusal of the City of Subiaco dated 15 May 2008 is affirmed.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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