CUMMING and TOWN OF CAMBRIDGE
[2018] WASAT 65
•28 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CUMMING and TOWN OF CAMBRIDGE [2018] WASAT 65
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
HEARD: 28 JUNE 2018
DELIVERED : 28 JUNE 2018
PUBLISHED : 24 JULY 2018
FILE NO/S: DR 116 of 2018
BETWEEN: CYNAN PETER CUMMING
LOUIS DETATA
Applicants
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development application - Application for retrospective development approval - Vehicular and pedestrian gates at recently completed strata residential development - Development approval for residential development subject to condition that 'No security gate shall be installed in order to allow access to visitor parking bays at all times' - Preliminary issue - Whether development application is competent where application for development approval not signed by strata company - Whether gates conform to provisions of State Planning Policy 3.1 - Residential Design Codes in relation to visitor car parking - Whether gates have effect that visitor car parking bays would not be 'conveniently accessed' - Orderly and proper planning - Consistency in planning decisions relating to same site
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015, Sch 2 (deemed provisions), cl 62(1)(b)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 - Residential Design Codes, cl 6.3.4, cl 6.3.4 P4, cl 6.3.4 C4.2
Result:
Application for review dismissed
Development approval for vehicular and pedestrian gates refused
Summary of Tribunal's decision:
The applicants obtained development approval from a Development Assessment Panel for the construction of 19 multiple dwellings and 25 onsite car parking bays, of which five are to be allocated for visitors. The development approval was granted subject to conditions, including the following:
No security gate shall be installed in order to allow access to visitor parking bays at all times.
The applicants constructed the approved development and also constructed a metal vehicular gate and a metal pedestrian gate at the site with all onsite car parking bays (including the visitor bays) located behind the vehicular and pedestrian gates. The applicants applied to the Town of Cambridge for retrospective development approval for the gates. The Town refused to grant consent and the applicants sought review of that decision by the Tribunal.
The Tribunal refused to grant development approval for the gates for two reasons. First, the gates do not conform to the provisions of State Planning Policy 3.1 - Residential Design Codes relating to the design of car parking spaces, because the gates have the effect that the onsite visitor car parking bays are not located 'outside any security barrier' and are not 'conveniently accessed'. Secondly, it is in the interests of orderly and proper planning that planning decisions in relation to the same site are made in a consistent way when the planning framework is the same and the circumstances have not changed in any substantial way.
The application for review was dismissed and the Town's decision to refuse development approval for the gates was affirmed.
Representation:
Counsel:
| Applicants | : | Mr G Harden-Jones (Acting as Agent) |
| Respondent | : | Mr J Algeri (Acting as Agent) |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Springmist Pty Ltd and Shire of AugustaMargaret River [2005] WASAT 143; (2005) 41 SR (WA) 207
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Cynan Cumming and Mr Louis Detata (applicants) seek review by the Tribunal, under s 252 (1) of the Planning and Development Act 2005 (WA) (PD Act), of the refusal by the Town of Cambridge (Town or Council) of a development application for retrospective approval for a metal vehicular gate and a metal pedestrian gate at No. 122 (Lot 62) Kimberley Street, West Leederville (site).
The vehicular and pedestrian gates are set back 6.5 metres from the street frontage. The gates are visually permeable and match the infill panels in the front fencing of the development on the site.
Site and locality
The site is unusually shaped and sized for the locality. The site has an area of 2,023m2 and a depth of in the order of 100 metres. The site is zoned 'Residential' and has a residential density coding of 'R40' under the Town of Cambridge Town Planning Scheme No.1 (TPS 1).
The locality of the site comprises a mix of residential developments, including early 20th century to mid-20th century residences, some without onsite car parking, and more recent residential developments in the form of multiple and grouped dwellings.
A feature of Kimberley Street in the locality of the site is that there is no on-street parking allowed for vehicles other than residents' vehicles, and then only with a resident parking permit granted by the Town.
Development Assessment Panel development approval
On 22 May 2015, the Metro West Joint Development Assessment Panel (DAP) granted development approval for the construction of 19 multiple dwellings over two levels on the site and 25 onsite car parking bays, of which five are to be allocated for visitors. The approved plans of the development show the five visitor car parking bays as located in the closest part of the site to the street and being the first five car bays as one enters the development to the left of the driveway.
Condition 7 of the development approval granted by the DAP states as follows:
No security gate shall be installed in order to allow access to visitor parking bays at all times.
Notwithstanding that condition, the development was constructed with the vehicular and pedestrian gates for which development approval is now sought in this proceeding.
The applicants' architect indicated to the Tribunal that that construction occurred without his knowledge that is to say that the gates were constructed on the site without his knowledge. Once he became aware of the construction of the gates, he suggested to the applicants that they should apply for development approval in order to retrospectively authorise the construction of the gates on site.
The multiple dwelling development was completed and an occupancy permit granted on 22 November 2017.
In the Strata Plan prepared by the applicants, the location of the five visitor car parking bays was altered from the location shown on the approved development plans (that is, the first five bays closest to the street) to be spread out through the development. The Strata Plan shows the first visitor bay as the ninth bay from the street and the other four visitor bays located centrally or towards the rear of the site. The Town endorsed the Strata Plan and the Strata Plan was examined and approved on 15 January 2018.
The five visitor car parking bays in the completed development are located as shown on the Strata Plan, not as shown on the approved development plans. The plans approved by the DAP have never been amended to reflect the relocation of the car parking bays.
Development application for retrospective approval of the vehicular and pedestrian gates
The development application was lodged on 1 February 2018. In support of the application, the applicants' architect submitted a statement of reasons for the application, indicating essentially that the development approval was sought in order to provide secure access for both pedestrians and vehicles to the complex.
Mr HardenJones, the applicants' architect, said at that time and reiterated to the Tribunal at the hearing that the site is unusual, in that it is long and narrow, and the length of the driveway means that there are security issues. In particular, there is a concern that antisocial behaviour could occur without secure gates. Furthermore, it was said in the document accompanying the development application and further submitted to the Tribunal that, without a gate, there may be security issues in terms of crime, not only for the site but for adjoining properties.
The Council's assessing officer recommended approval of the proposed development, that is to say, approval of the gates. She did so for the following reasons:
The 6.5 metre setback of the gate provides a safe waiting area off Kimberley Street for a vehicle, for visitors to access the intercom and wait for the gate to open. Technology allows for the gate to open conveniently by residents in their apartments.
With regard to streetscape, the gates match the infill panels of the front fencing. The gates are at a lower level and set back from the street and therefore have no detrimental impact on the streetscape.
The assessing officer set out the relevant 'deemed-to-comply' and 'design principle' provisions in relation to the location of visitor car parking bays in State Planning Policy 3.1 Residential Design Codes (R-Codes). I will refer to those provisions later in these reasons. The officer considered that the development involving the gates conforms to those provisions.
The Council did not accept the recommendation of the officer and resolved to refuse the development application unanimously for the following reason:
It is considered that condition (vii) which requires that no security gates shall be installed should remain as a condition of approval as the installation of a security gate would impede access to the visitor bays and result in displacement parking on the surrounding streets.
That reason for refusal remains in issue between the parties. In orders made by the Tribunal on 22 June 2018, the issue was stated as follows:
Whether the security gate for which approval is sought is acceptable, having regard to the accessibility of visitor bays for the development and the potential for displacement of parking in the surrounding streets.
Although the assessing officer considered and stated in her report that there is an intercom enabling visitors to contact residents for the residents to open the gate, the evidence before me indicates that there is, in fact, no intercom. Mr HardenJones explained that there is a keypad located between the pedestrian gate and the vehicular gate, and that that allows access by punching in the relevant code to those gates from the outside.
Mr Harden-Jones also gave evidence that there is a 'fob' allocated to the residents which enables them, by pressing one of two buttons, to open the pedestrian gate and the vehicular gate remotely. Mr HardenJones gave evidence that he himself has used this fob device, although not from within any of the dwellings. Rather, he used it on the street. There is no evidence before the Tribunal that this fob device, in fact, will enable the gates to be opened from, for example, the most remote dwelling located some 100 metres from the gate.
Preliminary issue
I raised a preliminary issue with the parties as to whether the development application is competent, given that it was made by the applicants, who Mr HardenJones indicated were the developers, but lodged at a time after the Strata Plan was registered.
Clause 62(1)(b) of the deemed provisions in local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) provides that:
An application for development approval must be
…
(b)signed by the owner of the land on which the proposed development is to be located[.]
The gates are located on common property and the owner of the common property is The Owners of Strata Plan 72641 (strata company). It does not appear that the development application was, in fact, signed by the strata company.
Mr HardenJones indicated that, from his experience, the applicants are likely to have been the owners of the strata lots or a majority of them at the time when they lodged the development application. That may well be the case. However, the development application was not signed by the owner of the land on which the development is located.
For reasons I will give, I have determined that, on the merits of the application, the development application should be refused.
Had I been of the view that, on the merits, the development application should be approved, I would have adjourned the matter, after giving reasons but without making orders granting development approval, to enable the strata company to provide owners' consent to the development application.
Although the development application was not signed by the strata company at the time it was lodged, this omission could be remedied at any time up until the determination of the development application, relevantly, prior to the Tribunal issuing orders: Springmist Pty Ltd and Shire of AugustaMargaret River [2005] WASAT 143; (2005) 41 SR (WA) 207 [14].
Consideration of application for review
The principal question before the Tribunal debated by Mr HardenJones, an architect representing and giving evidence on behalf of the applicants, and Mr Algeri, a town planner representing and giving evidence on behalf of the Town, is whether the gates conform to the applicable provisions of the RCodes, that is, cl 6.3.4 relating to the design of car parking spaces.
Clause 19(3) of TPS 1 states as follows:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.
The relevant 'deemed-to-comply' provision in cl 6.3.4 C4.2 of the RCodes states as follows:
Visitor car parking spaces:
•marked and clearly signposted as dedicated for visitor use only, and located close to or visible from the point of entry to the development and outside any security barrier; and
•provide an accessible path of travel for people with disabilities.
The corresponding 'design principle' in cl 6.3.4 P4 of the R-Codes states as follows:
Car, cycle and other parking facilities are to be designed and located onsite to be conveniently accessed, secure, consistent with streetscape and appropriately manage stormwater to protect the environment.
It is common ground - and clearly the case - that the gates do not conform to the deemed-to-comply provision, because the gates have the effect that the visitor car parking bays are not located 'outside any security barrier'.
However, the applicants submit that the development conforms to the corresponding design principle.
In support of that submission, Mr HardenJones gave expert evidence as an architect that the development does provide 'conveniently accessed' and 'secure' car parking bays for visitors. He indicated that the car parking bays are conveniently accessed, because visitors can contact the owner or the resident that they are visiting by texting or telephoning them on their mobile telephone and then be allowed access into the development.
Mr HardenJones also indicated, in response to the opinion of Mr Algeri, that the width of the driveway (4.6 metres), particularly when taken together with the width of the pedestrian access way which is at the same level (1.2 metres), provides ample opportunity for vehicles to pass one another.
Mr Algeri gave expert evidence as a town planner. He considers that the proposal does not conform to the design principle in relation to car parking for visitors.
In terms of security being one aspect of the design principle, Mr Algeri considers that the proposal is not consistent with security, because visitors could only enter if they have the code number or if they are allowed in through the fob. If they have the code number, then the purpose of the development, that is, to create security for the complex, would be defeated.
More fundamentally, Mr Algeri is also of the opinion that the proposal does not involve convenient access to the visitor bays. That is because there is no signage at the entrance to indicate where the visitor bays are located or even that there are visitor bays on site. The visitor bays, as now located on the site, while marked as visitor bays on the ground in those locations, are not visible from the street. Mr Algeri also considers that the proposal does not involve convenient access to visitor bays, because there is insufficient width in the driveway to allow a resident vehicle exiting the complex to pass a visitor car waiting to be allowed into the complex.
Mr Algeri also gave evidence that, if a resident being visited does not see the visitor's text or does not hear the visitor's telephone call, and if the visitor does not know the code to be able to enter, it is likely that the visitor will park on the street. Parking on the street for anyone other than a resident with a permit is unlawful. Mr Algeri related evidence from the Town, which was not questioned by the applicants, that since commencement of this year, seven infringement notices have been issued by the Town in the general vicinity of the site.
In response, Mr HardenJones said that essentially one infringement notice per month does not create or indicate a parking problem. He also gave evidence that the area generally is now developed, there being no other obvious development sites, and therefore the parking issue in the locality is not likely to become any worse.
In my view, the proposed development, that is to say the existing gates for which retrospective approval is sought, should be refused approval for two reasons. The first is that, in my view, contrary to cl 19(3) of TPS 1, the proposed development does not 'conform to' cl 6.3.4 of the R-Codes.
As indicated earlier, the development does not conform to the deemed-to-comply provisions in cl 6.3.4 C4.2 of the R-Codes, because it has the effect that the visitor cark parking bays are not located 'outside any security barrier'. In my view, the development also does not conform to the corresponding design principle set out in cl 6.3.4 P4 of the R-Codes, because the gates have the effect that the onsite visitor car parking bays are not 'conveniently accessed', for the following reasons.
First, the gates themselves provide a physical barrier, as they are intended to. A visitor coming to the site for the first time and confronted with the gates and without any intercom is very likely to simply reverse out and park on the street. This is particularly the case, because the onsite visitor bays are not visible from the gate and there is no signage even indicating that there are onsite visitor bays available.
Secondly, as Mr Harden-Jones himself commented, based on his experience with strata schemes elsewhere, there is from time to time a problem with strata schemes where owners of units in the strata scheme come to monopolise the visitor bays. In my view, that is likely to be an even more significant issue as a result of the gates. The gates themselves will, in my view, likely lead to residents monopolising the visitor bays, particular given that the visitor bays are spread throughout the development, because they will be perceived as being part of the 'private domain' of the development, rather than part of the 'public domain' available to visitors.
Thirdly, even if a visitor knows of the existence of visitor bays within the development, the visitor is required to contact the resident by text or telephone, unless the visitor knows the code. It is entirely conceivable that a resident will not see the text or hear the call if they are otherwise engaged in their apartment. That being the case, it is likely that visitors who do not receive an immediate response to their text or call will back out from the development and park on the street, which, as I have said earlier, is unlawful.
On the other hand, if the visitor is aware that there are visitor bays on site and has been given the code by the resident, that will undermine the security of not only the visitor bays on the site, but of the development generally (contrary to the aspect of the design principle that parking facilities are to be 'secure').
Fourthly, I accept Mr Algeri's evidence that there is a concern in relation to convenient access as a consequence of the width of the driveway in the location of the gate.
Although it is true that this is a low speed environment, and although there is a capacity for vehicles to move onto or partly onto the pedestrian path, and although it is not unusual to have shared pedestrian and vehicular paths, it is undesirable for a vehicle to move out either onto the street or into the pedestrian path in order to allow a vehicle exiting from the development to exit.
For these reasons, in my view, the proposal does not conform to the design principle in cl 6.3.4 P4 of the R-Codes. In particular, it does not conform to the aspect of the design principle that parking facilities are to be designed and located on site to be 'conveniently accessed'.
The second reason for which this application should be refused, in my view, is that it is contrary to the principles of orderly and proper planning in terms of consistent decision-making in planning applications.
As the Tribunal said in Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 at [54]:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
It is not suggested by the applicants that there has been any change in the planning framework in relation to the site since the DAP granted the DAP development approval, nor is it suggested that there has been any substantial change in the circumstances of the site.
Although the specific reason for the imposition of condition 7 on the grant of development approval was not stated by the DAP, other than within the condition itself ('in order to allow access to visitor parking bays at all times'), it is a reasonable inference in light of the prohibition of onstreet parking for anyone other than residents with permits that the purpose of the condition is to preclude parking on the street by visitors.
That circumstance is unchanged from the time when the development approval was granted.
In my view, this was a further factor on account of which the application should be refused. It is in the interests of orderly and proper planning that planning decisions in relation to the same site are made in a consistent way unless the circumstances have changed in a substantial way. The circumstances in this case are unchanged.
Moreover, the grant of development approval occurred in the context of an application for review by the Tribunal and an invitation to the DAP to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA). The application for review was withdrawn after the grant of development approval. The applicant could have challenged condition 7 in the context of that proceeding, but did not do so. Rather, it accepted the condition and then proceeded to construct the gates without approval.
In all these circumstances, in my view, the application for review should be refused.
During the course of his closing submissions, Mr HardenJones suggested that the application could be approved subject to a condition being that the gates are to remain open during the day, and in particular between 7 am and 6 pm. The Town had not previously been advised of that possible condition and was not in a position to make any real submission in relation to it.
In my view, the imposition of the condition suggested by Mr HardenJones would not have the effect that the gates would conform to the design principle in cl 6.3.4 P4 of the Codes. It is entirely conceivable that visitors will come to the development after 6 pm, and if they do so, then then visitor bays on site will not be 'conveniently accessed' once the gates are closed, for the reasons set out earlier.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 24 April 2018 to refuse to grant retrospective development approval for a vehicle security gate and a pedestrian gate at No 122 (Lot 62) Kimberley Street, West Leederville is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE24 JULY 2018
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