Crisp and Town Of Cambridge
[2014] WASAT 71
CRISP and TOWN OF CAMBRIDGE [2014] WASAT 71
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 71 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:405/2013 | 3 APRIL 2014 | |
| Coram: | MR J JORDAN (MEMBER) | 13/06/14 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | DIGBY CRISP TOWN OF CAMBRIDGE |
Catchwords: | Town planning Development Refusal Proposed development of two storey single dwellings on each of two adjoining green title lots Each house with a double garage with access from frontage street Right of way access available at rear of lots Policy on use of right of way for vehicle access Policy on impact of garage doors on dwelling and streetscape Garage doors greater than 50% of frontage Exercise of discretion under the policies Orderly and proper planning |
Legislation: | Planning and Development Act 2005 (WA), s 252(2) State Planning Policy 3.1 Residential Design Codes 2013, cl 5.1.2 P2.1, cl 5.2.1, cl 5.2.1 P1, cl 5.2.2, cl 5.2.2 P2, cl 5.2.3 P3, cl 5.3.4, cl 5.3.4 P4, cl 5.3.5 P5 Town of Cambridge Town Planning Scheme No 1, cl 5(1), cl 5(3)(a), cl 5(3)(b), cl 5(3)(c), cl 38(4)(b), cl 38(4)(f) State Administrative Tribunal Act 2004 (WA), s 27(2) |
Case References: | Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 |
Orders | On the application heard on 3 April 2014 by Member James Jordan, it is on 13 June 2014 ordered that: ,1. The application for review is dismissed.,2. The decision of the Town of Cambridge dated 17 October 2013 to refuse the application for planning approval is endorsed. |
Summary | This matter involved the review of a refusal to grant planning approval for a development application that proposed the construction of a two storey dwelling on each of two 10.6 metre wide adjoining lots. In addition to normal street frontage, the lots also had access to a rear right of way.,The issues raised centred around policy requirements for rear access where available, impact of garages on a dwelling and the streetscape, setbacks, landscaping and surveillance.,The Tribunal concluded that the dwellings as proposed could not be supported because, significantly, they included double garages that would dominate the appearance of the dwellings and be inconsistent with streetscape objectives.,The Tribunal decided to dismiss the application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CRISP and TOWN OF CAMBRIDGE [2014] WASAT 71 MEMBER : MR J JORDAN (MEMBER) HEARD : 3 APRIL 2014 DELIVERED : 13 JUNE 2014 FILE NO/S : DR 405 of 2013 BETWEEN : DIGBY CRISP
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning Development Refusal Proposed development of two storey single dwellings on each of two adjoining green title lots Each house with a double garage with access from frontage street Right of way access available at rear of lots Policy on use of right of way for vehicle access Policy on impact of garage doors on dwelling and streetscape Garage doors greater than 50% of frontage Exercise of discretion under the policies Orderly and proper planning
Legislation:
Planning and Development Act 2005 (WA), s 252(2)
State Planning Policy 3.1 Residential Design Codes 2013, cl 5.1.2 P2.1, cl 5.2.1, cl 5.2.1 P1, cl 5.2.2, cl 5.2.2 P2, cl 5.2.3 P3, cl 5.3.4, cl 5.3.4 P4, cl 5.3.5 P5
Town of Cambridge Town Planning Scheme No 1, cl 5(1), cl 5(3)(a), cl 5(3)(b), cl 5(3)(c), cl 38(4)(b), cl 38(4)(f)
State Administrative Tribunal Act 2004 (WA), s 27(2)
Result:
Application for review dismissed
Summary of Tribunal's decision:
This matter involved the review of a refusal to grant planning approval for a development application that proposed the construction of a two storey dwelling on each of two 10.6 metre wide adjoining lots. In addition to normal street frontage, the lots also had access to a rear right of way.
The issues raised centred around policy requirements for rear access where available, impact of garages on a dwelling and the streetscape, setbacks, landscaping and surveillance.
The Tribunal concluded that the dwellings as proposed could not be supported because, significantly, they included double garages that would dominate the appearance of the dwellings and be inconsistent with streetscape objectives.
The Tribunal decided to dismiss the application.
Category: B
Representation:
Counsel:
Applicant : Mr A Hemsley (Acting as Agent)
Respondent : Ms A Butterworth (Acting as Agent)
Solicitors:
Applicant : WABCA (Building Surveyors, Town Planners)
Respondent : Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Introduction
1 On 17 October 2013, the Town of Cambridge (respondent or Town) refused to grant planning approval for a development application that proposed the construction of a two storey dwelling on each of adjoining Lot 17 and Lot 18 Antrim Street, West Leederville.
Site and access
2 Lots 17 and 18 each have an area of 304 m² and are orientated north-south. Both lots have a frontage of 10.6 metres to Antrim Street at the northern boundary, and at the rear, southern boundary, the same frontage to a right of way named Deverell Lane. The Antrim Street reserve is 10 metres wide and Deverell Lane is 3.02 metres wide.
3 At the western end, Antrim Street has a junction with Coldstream Street. At the eastern end is a cul-de-sac head adjacent to a brick wall with a pedestrian opening which separates West Leederville from Southport Street and, abutting that, Mitchell Freeway. Deverell Lane also extends from Coldstream Street at the western end to the wall adjacent to Southport Street. Deverell Lane has no turning circle at the eastern end.
Proposed development
4 An existing dwelling that currently straddles the boundary between Lot 17 and Lot 18 would be demolished to make way for the two new two storey dwellings. At the ground floor level facing Antrim Street, the proposed dwellings would each have a 6.1 metre wide double garage with a parapet wall on the side boundary and a setback of 4.5 metres from the front boundary. Abutting the garage would be a 2.1 metre wide porch, 4.1 metres back from the front boundary and with a side boundary setback of 1.8 metres. Beyond the porch, the house side setback would be mostly 1 metre. The first floor would comprise a sitting room with a balcony at one side above the porch set back 4 metres from the front boundary. The setback at both sides of the upper floor would be 1.5 metres. The effect of the design would be that the garage would have a front setback 0.5 metres greater than the first floor above, but would extend to a parapet on the side boundary, unlike the 1.5 metre side setback of the floor above.
5 At the rear of the site would be a boundary fence with the house, in part set back 2 metres from the rear boundary and in part 8.5 metres, to accommodate a paved alfresco area. The houses would be mirror images of each other with a combined distance of mostly 2 metres between the buildings at the common side boundary.
6 In the course of the hearing, the parties referred to the provision of landscaping, as set out on the application sketch, and also a subsequent sketch amended to show landscaping as an increased percentage of the front setback area. The remainder of the front setback area would be occupied by the paved driveway between the crossover to Antrim Street and the double garage. There would be no front fence.
7 The applicant applied to the Tribunal for review of the Town's refusal of the development application pursuant to s 252(2) of the Planning and Development Act 2005 (WA) (PD Act). The Tribunal viewed the site and surrounds accompanied by representatives of the parties.
Planning framework
8 Lot 17 and Lot 18 are zoned Residential with a density coding of R40 under the Town of Cambridge Town Planning Scheme No 1 (TPS 1). In addition to relevant provisions of TPS 1, the parties also made reference to:
• State Planning Policy 3.1Residential Design Codes (Codes) gazetted on 2 August 2013;
• Western Australian Planning Commission Development Control Policy 2.6- 'Residential Road Planning' (DC 2.6);
• Local Planning Policy 6.5: Precinct 5; West Leederville (Precinct Policy); and
• Local Planning Policy 3.1- 'Streetscape Policy' (LPP 3.1).
9 The current version of LPP 3.1 was endorsed by the respondent on 27 November 2013. LPP 3.1 identified that it was adopted as a local planning policy and was designed to replace or amend certain deemed-to-comply provisions of the Codes, as provided for at s 7.3.1 of the Codes. In adopting LPP 3.1, the respondent resolved that:
Section 3.1.1 (street setbacks), 3.1.2 (minor incursions), 3.1.3 (garages) and 3.1.6 (street surveillance) of draft policy 3.1 streetscape come into effect from 1 January 2014.
10 The submission of the respondent was that the proposed setback to the garages and the first floor would not meet the deemed-to-comply provisions as set out in LPP 3.1 and so the development must be considered under the Design principles of cl 5.2.1 of the Codes.
11 The garages would also occupy more than 50% of the frontage of each lot, and the respondent said this would conflict with the deemed-to-comply provisions of LPP 3.1. This aspect of the development must therefore be assessed against the design principles of cl 5.2.2 of the Codes relating to garage width.
12 LPP 3.1 at clause 3.1.9 sets out desired standards for landscaping. This requires a minimum of 60% of the primary setback area to be landscaped. This can be reduced as follows:
… 5% reduction in landscaped area per tree, to a maximum of two trees, for planting of an advanced growth tree (equivalent to 2.0 m in height and 2.0 m in diameter or a minimum 45 litre bag) in the street setback area[.]
13 The Precinct Policy at clause 1.1, includes as an objective:
Existing character of the area will be enhanced by:
• an emphasis on rear laneway access to retain existing streetscapes[.]
14 Mr Alex Hemsley, the town planner who appeared for the applicant, expressed concern that the assessment process had not been 'fair' because of the changes to planning policies between 30 July 2013, when the application for planning approval was made to the Town, and the date of the hearing before the Tribunal. When asked, Mr Hemsley said that the applicant did have the opportunity to prepare its case and address the respondent's position in respect of the applicable standards, but was concerned that the applicant would be disadvantaged because what was considered to be an acceptable proposal at the time it was lodged with the Town was now said by the respondent to be in conflict with its policies.
15 The Tribunal notes that the 2010 Codes were not materially different from the current Codes in relevant areas. The Codes had been available for public comment for some months and were gazetted three days after the development application was lodged. The Tribunal considers that the Codes as now gazetted are the appropriate reference in the consideration of this matter.
16 Examination of the planning instruments reveals that in respect of garage door width, clause 6.2.8.A8 of LPP 3.1 (2008) and clause 3.1.3 of LPP 3.1 (2013) are essentially the same. That is, for the proposed development, the width of the garage is not to be more than 50% of the frontage. This might be increased to 60% of the frontage if the upper floor or balcony extends for the full width of the garage and the entrance to the dwelling is clearly visible from the primary street.
17 As the proposed garage would be 62% of the frontage, it was common ground that it was necessary to assess the garage doors, having regard to the design principles for garage width at cl 5.2.2 P2 of the Codes which states:
Visual connectivity between the dwellingand the streetscape should be maintained and the effect of the garagedoor on the streetscape should be minimised whereby the streetscape is not dominated by garage doors.
18 In respect to landscaping, LPP 3.1 (2008), at clause 6.2.10A10, required that 60% of the primary street setback be landscaped. Under clause 3.1.9 of LPP 3.1 (2013) the minimum of 60% landscaping is retained, but this can be reduced by 5% for each tree planted to a minimum 50%. In this regard, the applicant would not be disadvantaged.
19 In respect to front setback, under LPP 3.1 (2008), there was a standard setback of 4 metres to each of the double garage, the ground floor and the first floor. Since 1 January 2014, under LPP 3.1 (2013), clauses 3.1.1 and 3.1.3, the setbacks are required to be, respectively, 5 metres, 4 metres and 6 metres.
20 There has also been a change to the requirement for street surveillance. Clause 3.1.6 of LPP 3.1 (2013) requires that there be at least one habitable room at the front of the dwelling on each level having a major opening facing the street. Previously it was simply one habitable room at the front of the dwelling as a whole, which is what is proposed. Under the Codes at cl 5.2.3 P3, the design principles for street surveillance states:
Buildings designed to provide for surveillance (actual or perceived) between individual dwellings and the streetand between common areas and the street, which minimise opportunities for concealment and entrapment.
21 Under the State Administrative Tribunal Act 2004 (WA) (SAT Act), at s 27(2), the purpose of the review 'is to produce the correct and preferable decision at the time of the decision upon the review'. At paragraph 303 of Guide to Proceedings in the Western Australian State Administrative Tribunal by D R Parry and B de Villiers, it is stated:
This requires the Tribunal to produce the legally correct and preferable (in terms of potential merits outcomes) decision, in respect of the issues properly before the Tribunal, having regard to the facts, circumstances and any relevant policies as they exist at the date of the Tribunal's decision, even if the law, facts, circumstances or policies had changed since the decision the original-maker.
22 There have been changes to the relevant policies in the course of the proposed development being before the Town, as the original decision-maker, and then the Tribunal. The text of TPS 1, however, has not changed, and there remains the discretion to approve or refuse the development. The Tribunal has found, however, that in certain respects, the proposed development must now be assessed against design criteria instead of deemed-to-comply provisions. As stated above, the applicant said that it was aware of the changes and the respondent's position in relation to them, and so has had the opportunity to prepare. The Tribunal has decided that to be consistent with orderly planning, this application is to be considered on the basis of the relevant policies as they now exist, consistent with the SAT Act.
Issues
23 The issues identified by the parties included:
1) whether the proposed development satisfies the relevant design principles of the Codes;
2) whether the proposed access from the primary street is acceptable, having regard to the Precinct Policy;
3) whether the proposed front setback, landscaping and garage width variations are acceptable, having regard to LPP 3.1; and
4) whether approval of the proposed development would adversely affect the streetscape and amenity of the immediate locality.
Discussion
24 Clause 38(4)(b) of TPS 1 requires that regard be had to planning policies. Clause 38(4)(f) requires regard to be had to orderly and proper planning. The Tribunal is required by the dictates of orderly and proper planning to give proper consideration to the local planning scheme and related planning policies that set out the planning objectives to be achieved. In doing this, it is important to have regard to the particular features of the proposed development and the locality where it will be sited.
25 The applicant said the 3.02 metre wide right of way was not suitable for the purpose of the primary means of vehicle access because it was designed and built at the time when there was not a high level of motor vehicle ownership. The applicant said Deverall Lane was too narrow to allow vehicles travelling in different directions to pass and did not have a turning circle at the head. In addition, the one exit from the right of way was not adequately truncated for visibility as vehicles approached the footpath adjacent to the boundaries of properties on Coldstream Street. There would be pedestrian and vehicle conflict at the footpath and also within the right of way. In the applicant's submission, Deverall Lane was not a safe and practical means of primary vehicle access and there was nothing in any planning instrument that plans for a widening of the right of way.
26 The applicant said only one dwelling facing Antrim Street solely used the right of way for vehicular access and that was the dwelling abutting to the east of Lot 17. If vehicle access to the proposed houses was to be provided from the right of way, consistent with AS2890.1-1993, a garage setback of 3 metres would be required to create a manoeuvring clearance of 6.2 metres to enable vehicles to gain the required access to parking spaces at 90 degrees to the right of way. These factors, it was said, reduced the practicality of using the right of way as a means of primary access and the viability of developing a family home on each of the lots.
27 Mr Hemsley said that these factors meant using the right of way for the sole means of vehicle access would be inconsistent with the objectives of cl 5(1) and cl 5(3)(a) to cl 5(3)(c) of TPS 1. That is because the use of the right of way would not:
1) control and guide development and growth in a responsible manner;
2) protect and enhance the health, safety and general welfare of the Town's inhabitants; and
3) ensure that the use and development of land is managed in an effective and efficient manner in a flexible framework that recognised the individual character of the locality.
28 Ms Amanda Butterworth, the planner who appeared for the respondent, said that while there was nothing in LPP 3.1 directly about preferred vehicle access, the Precinct Policy encouraged rear laneway access where available, to retain streetscapes.
29 Ms Butterworth said that as it was proposed that there be vehicle access from the dwellings to Antrim Street and not from the right of way, the proposal must be considered under the design principles of cl 5.3.5 P5 of the Codes.
30 Ms Butterworth accepted that access for vehicles from Antrim Street would be safe and 'legible'. She did not consider, however, that the proposal satisfied the design principles at cl 5.3.5 P5 of the Codes for the following reasons:
• Access from Antrim Street would not reduce the impact of access points on the streetscape. There would be a need to provide a second crossover where one already exists.
• Access from Antrim Street would not improve pedestrian safety. This was because there was a footpath on the southern side of Antrim Street, along the front of Lot 17 and Lot 18, that links to the dual use path along Southport Street, which in turn provides access to the Leederville Train Station, and there would be an increase in crossovers, although it was acknowledged that there being no front fence, there would be clear sightlines.
• Access from Antrim Street would reduce the possibility of high quality landscaping in the front setback.
31 In Ms Butterworth's opinion, the objectives in TPS 1 would not be satisfied with the proposed development. Ms Butterworth did not consider access should be provided via Antrim Street when access from the right of way was available.
32 The Tribunal has formed the view that vehicular access to each of Lots 17 and 18 via the right of way would be difficult, but manageable. Twelve lots have a boundary onto the right of way, not counting the two lots with side boundaries to Coldstream Street, five to the north and seven to the south. Two lots have garages off the right of way and the two larger lots at the end have been redeveloped as grouped dwellings with carport access off the respective frontage streets. It would certainly be preferable for the right of way to be wider, but in the particular circumstances, use of the right of way as an access to a garage is considered workable when some manoeuvring space is provided on site.
33 The Tribunal notes that the standards of AS2890.1, referred to by the applicant, are listed as deemed-to-comply requirements for parking spaces at cl 5.3.4 of the Codes. Car parking spaces could otherwise be assessed under the design principles at cl 5.3.4 P4, which provide some flexibility in relation to the design of parking and accessways for a dwelling. Sufficient manoeuvring area might be available at less than the setback suggested by the applicant.
34 The Tribunal noted the applicant's concern about the adequacy of vehicle access being only from the rear right of way. It does not follow from this, however, that the Tribunal accepts that a double garage as proposed must be provided at the front of each of Lot 17 and 18 as proposed. Some 62% of the frontage of each lot would be given over to a garage door. These doors must be assessed against the design criteria at cl 5.2.2 P2 of the Codes.
35 The design of the house does not satisfy the requirements for granting a relaxation of the standard of 50% to the concession of 60%. The Tribunal considers that the garages proposed would dominate each dwelling because they extend beyond the width of the upper floor level and, at ground floor level, reduce the development to a garage door and a porch. The Tribunal does not accept that this is the standard of development that should be established for the street.
36 As pointed out by Mr Adam Roxby, an architect called by the applicant, Antrim Street has a particular character contributed to by the vehicle parking hardstands at the front of houses and some high boundary fencing.
37 The Tribunal is of the view that what parking arrangements may currently exist on other lots should not determine how current policy on parking and garages and the streetscape should be implemented. The intent of the policy now in place is that the streetscape not be dominated by garage doors. The policy cannot change existing development, but is in place to influence future local character and streetscape. The proposed garage doors would be the first in the street, but this is not considered to be a basis for not implementing what is now an established policy. This is particularly so in circumstances where there is potential for either the complete redevelopment of neighbouring lots or for the addition of parking facilities to existing developments. In the opinion of the Tribunal, double garages had the potential to become a dominant element in the streetscape if the policy were not to be implemented. The Tribunal considers that the policy on the width of garages as a proportion of the frontage of a development on a single lot is reasonable in the circumstances.
38 At cl 5.2.1 P1of the Codes it states:
The setting back of carports and garages to maintain clear sight lines along the street and not to detract from the streetscape or appearance of dwellings; or obstruct views of dwellings from the street and vice versa.
39 The garage would not obstruct sightlines along the street. In addition, the garage would not obstruct the view between the dwelling and the street. The Tribunal agrees with the applicant that in respect to sightlines this principle is satisfied, but does not consider that this outweighs the concerns about the impact of the proposed double garages on each of the dwellings and the streetscape.
40 Lot 18 currently has a single crossover. Adding another single crossover to Lot 17, consistent with the pattern existing in the street, might, in certain circumstances, be considered acceptable, although a compliant 4 metre front setback would not accommodate a parked vehicle. While it is noted that the house on Lot 16 is developed with Deverall Lane being the only vehicular access, the Tribunal would comment that for Lots 17 and Lot 18, it might be possible to consider a crossover from Antrim Street, but this would be a matter for the proponent and the Town in considering any redesign.
41 In respect to the front setback, the ground floor of each of the houses would satisfy the 4 metre front setback requirement of clause 3.1.1 of LPP 3.1. The setback to the first floor and the garage, however, would not satisfy the street setback requirements of clause 3.1.1 of LPP 3.1, which are 6 metres and 5 metres respectively. When setbacks are assessed against the design principles at cl 5.1.2 P2.1 of the Codes for the dwelling and cl 5.2.1 P1 for garages, the Tribunal has formed the view that the front setbacks proposed are not, of themselves, sufficient to refuse this development, if it were otherwise acceptable.
42 In respect to the policy requirements for street surveillance, LPP 3.1 requires surveillance from a habitable room on each floor. This is not provided in the design, but the Tribunal notes cl 5.2.3 P3 of the Codes would be satisfied in respect to street surveillance because of the first floor window and balcony. In addition, there would be a clear sightline between the porch and the street.
43 At the hearing, the applicant provided a revised front landscaping plan. The Tribunal accepts that if development were to proceed on the basis of no double garage off Antrim Street, the landscaping requirements of LPP 3.1, including the concession to 50% of the front setback, might be satisfied.
Conclusion
44 In respect to the first of the issues identified for this matter, the Tribunal has concluded, as set out above, that the proposed development does not satisfy all of the design principles of the Codes. The Tribunal has found:
• Street setback to the garages and first floor are not satisfied but, if the development was otherwise acceptable, the variations proposed would not, of themselves, be sufficient to refuse the application, because none are less than the minimum of 4 metres required for the ground floor, which is satisfied.
• Garage widths are unacceptable and cannot be supported. They would exceed even the concessional width that might be allowed (subject to design requirements for the buildings, which are not met) would dominate each dwelling and would introduce into Antrim Street a dominant streetscape element that the policy now in place is seeking to prevent.
• Street surveillance is satisfactorily addressed with the open front and upper level habitable room window and balcony.
• Sightlines or crossovers to Antrim Street would be adequate, while sightlines where Deverell Lane meets Coldstream Street are only partially sufficient.
• Deverell Lane provides poor but not completely unacceptable access for vehicles. The hardstand at the front of the dwellings is not adequate to accommodate a vehicle completely off the road reserve.
45 In respect to the second issue, the Precinct Policy places an emphasis on 'rear laneway access to retain existing streetscapes'. The existing streetscape is one of a single crossover to a lot. The Tribunal has found the streetscape is not one of double garages. In circumstances where there is potential for a garage at the rear, the garages as proposed cannot be supported.
46 In respect to the third issue, setbacks and garages are addressed in the first two issues. As to landscaping, the Tribunal has found that there is potential for a design that would allow a reduction in the standard landscaping percentage as allowed under LPP 3.1.
47 It is well-established planning principle that policy is to guide the exercise of discretion, but not to replace discretion. That said, the relevant considerations are why a policy should not be applied and whether there are reasons to depart from the policy: Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24]. The Tribunal has concluded that the dwellings as proposed cannot be supported because they include significant departures from the established policies, as set out above, and would therefore have an adverse impact on the streetscape and the amenity of the locality.
48 The Tribunal has decided to dismiss the application.
Orders
The Tribunal therefore makes the following orders:
1. The application for review is dismissed.
2. The decision of the Town of Cambridge dated 17 October 2013 to refuse the application for planning approval is endorsed.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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