DE CAMPO and CITY OF FREMANTLE
[2007] WASAT 310
•5 DECEMBER 2007
DE CAMPO and CITY OF FREMANTLE [2007] WASAT 310
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 310 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:192/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (MEMBER) | 4/12/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The refusal of the proposed development by the City of Fremantle is affirmed | ||
| B | |||
| PDF Version |
| Parties: | LILIANA DE CAMPO CITY OF FREMANTLE |
Catchwords: | Town planning Development application Refusal Free-standing opensided structure in front yard of existing house Setback requirements Character of locality Streetscape Policy requirements |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 2.6, cl 4.2.1, cl 5.2.2, cl 10.2.1 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 241(3), s 252(1) Residential Design Codes of Western Australia (2002), cl 2.6, cl 3.2.1, cl 3.2.2, cl 3.2.3, Element 2, Figure 1 |
Case References: | Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 |
Orders | 1. The application for review is dismissed. ,2. The refusal of the proposed development by the City of Fremantle is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DE CAMPO and CITY OF FREMANTLE [2007] WASAT 310 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 5 DECEMBER 2007 FILE NO/S : DR 192 of 2007 BETWEEN : LILIANA DE CAMPO
- Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Refusal - Free-standing opensided structure in front yard of existing house - Setback requirements - Character of locality - Streetscape - Policy requirements
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 2.6, cl 4.2.1, cl 5.2.2, cl 10.2.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(3), s 252(1)
(Page 2)
Residential Design Codes of Western Australia (2002), cl 2.6, cl 3.2.1, cl 3.2.2, cl 3.2.3, Element 2, Figure 1
Result:
The application for review is dismissed
The refusal of the proposed development by the City of Fremantle is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr R Brooks (Acting as Agent)
Respondent : Mr J Lawrence (Acting as Agent)
Solicitors:
Applicant : Ron Brooks Planning (Town Planners)
Respondent : City of Fremantle
Case(s) referred to in decision(s):
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal by the City of Fremantle to grant planning consent for the proposed development of an open-sided roofed structure, to be used as a carport, in the front setback of the house at Lot 44 Lewington Street, Beaconsfield.
2 The City considered the development would be in conflict with the front setback requirements of the Residential Design Codes of Western Australia (2002) and its policies on maintaining existing streetscape character and amenity by maintaining setbacks.
3 The applicant submitted that the carport would not be in conflict with the objectives of the local planning scheme and policies because it was open-sided and would have little impact on the visual amenity of the locality.
4 The Tribunal concluded that the proposed carport would be a departure from the established streetscape and the impact it would have would be in conflict with the objectives of the City's local planning scheme and policy on carports. The application for review was therefore dismissed.
Introduction
5 These proceedings involve an application brought by Ms Liliana De Campo pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for the review of the decision of the City of Fremantle (respondent or City) made on 24 April 2007 to refuse development approval for an open-sided structure of limestone columns and a colorbond roof in the front setback of No 3 (Lot 44) Lewington Street, Beaconsfield (site). The application to the respondent for planning approval labelled the structure as a "patio". When the matter came before the Tribunal, the submissions made on behalf of the applicant were that the structure was to be used as, and should be assessed as, a carport.
Site and locality
6 The site is at the western side of Lewington Street and has an area of 823 square metres and a frontage of 18.1 metres. The land rises up from Lewington Street to the front of a single house set back 8.53 metres from the front boundary. The main rooms of the house are within a two-storey
(Page 4)
- section and at the same setback at the southern side is a single storey section with a double garage.
7 At the front near to the southern boundary is a 6.5 metre wide brick crossover from the street to an existing brick-paved area 9 metres wide extending from the front boundary to the double garage. The brick paving is set back 1 metre from the southern boundary.
8 At the rear of the house is a single storey addition with an iron skillion roof. Abutting the edge of the rear addition is a retaining wall to about gutter level height with a further wall on top. Behind this retaining wall the site has been filled to create a level terrace area of sand with small metal outbuildings.
9 Adjacent to the northern boundary of the site is a private access way, shown on the filed cadastral plan as Orchard Lane. This rises steeply up from Lewington Street to 1B Lewington Street, behind the site. A copy of the Certificate of Title shows that the site has the benefit of an easement over the access way and there is a gate that provides access from Orchard Lane to the elevated rear terrace.
10 To the north across the laneway is 1 Lewington Street. An aerial photograph filed by the respondent shows that the houses on 1 Lewington Street and the site and the four houses to the south are all at about the same setback of 8.5 metres from Lewington Street. On the opposite, eastern side of Lewington Street are the playing fields of Bruce Lee Reserve.
Planning framework
11 The site is zoned "Urban" under the Metropolitan Region Scheme and "Residential R20" under the respondent's Local Planning Scheme No 4 (LPS 4).
12 Clause 4.2.1(a) of LPS 4 states:
"Development within the residential zone shall -
…
(ii) safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area;
…
(Page 5)
- (iv) recognise the importance of traditional streetscape elements to existing and new development."
13 Clause 5.2.2 of LPS 4 states:
"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes."
14 The reference in LPS 4 is to the Residential Design Codes of Western Australia (2002) (Codes). Element 2 – "Streetscape", of the Codes, includes at cl 3.2.1 "Set Back of Buildings Generally". This was referred to by the parties, but is for buildings other than carports.
15 Clause 3.2.3 of Element 2 is "Set Back of Garages and Carports". Clause 3.2.3 A3 sets out acceptable development standards and cl 3.2.3 P3 performance criteria. These are discussed further below.
16 The respondent referred to two policies it had adopted, relevant provisions of which are also addressed in the discussion below. These are:
• Policy D.B.H1 "Urban Design and Streetscape Guidelines" (DBH 1); and
• Local Planning Policy D.C.6 "Garages/Carports in front of Dwellings/Buildings" (LPP DC 6)
The proposed development
17 The plan drawn by an architect and lodged with the City for planning approval showed a freestanding structure on the brick paving in the front setback labelled "patio". The structure comprised four limestone columns 350 millimetres square, 2.26 metres high with a pitched metal roof with gables facing the street and the house.
18 The front columns would be set back 3.4 metres from the front boundary and the rear columns 2.88 metres from the garage doors. The width between the columns parallel to the house and front boundary would be 5.720 metres. From front to rear the depth between the columns would be 1.55 metres with the overall depth under the roof, including the eaves, scaling at about 3 metres.
(Page 6)
19 The submissions to the Tribunal on behalf of the applicant said the structure was to be used as a carport. The use would not be by Mrs De Campo, but by persons visiting to provide her with personal services and for whom she would like to provide a covered parking space.
The refusal
20 The respondent refused to grant planning approval for the reasons:
"1. The proposal is inconsistent with the City of Fremantle's Planning Policy D.B.H 1 Urban Design and Streetscape Guidelines.
2. The proposal is inconsistent with the requirements of the Residential Design Codes in respect to the proposed 3.4 metre front setback."
21 To note is that the application included retrospective planning approval for the already erected four limestone pillars that would support the structure plus two further limestone pillars of the same height and dimensions erected closer to the front boundary either side of the head of the crossover.
The issue
22 The issue to be considered in this matter is:
"whether the proposed development is inconsistent with and out of character with the established streetscape pattern and would be detrimental to the visual amenity of the locality."
Submissions of the parties
23 Mr Ron Brooks, a planning consultant who made submissions on behalf of the applicant, said the labelling of the structure as a patio was a mistake and that the development would be a carport. A viewing of the sketch shows that the structure is not a traditional carport. Scaling from the application sketch, the proposed structure is 3.0 metres deep if the overhang of the eaves beyond the piers is included. A standard parking bay is 5.0 metres deep. Most cars parked under the roof, therefore, would not be fully covered as they would extend beyond the roof.
24 It was not clear to the Tribunal, however, what other use the structure might be used for, being freestanding on the brick paving between the street crossover and the double garage doors. The Tribunal therefore
(Page 7)
- proceeded on the basis that, as the structure would be used as a carport it would be assessed as a carport, as requested by Mr Brooks.
LPS 4 objectives for the residential zone
25 The respondent said the development would be in conflict with the objectives of the residential zone of LPS 4, particularly those set out at cl 4.2.1(a)(ii) and cl 4.2.1(a)(iv) which require development within the residential zone to safeguard amenity, be sympathetic with the character of the area and to recognise the streetscape pattern.
26 The respondent provided an aerial photograph to illustrate that the two houses to the north and four to the south did not have structures in the setback between the house and the street. It said the proposed development would be out of character with the established streetscape pattern and therefore would be detrimental to the visual amenity of the locality, in conflict with LPS 4 objectives. Copies were provided of four letters of objection received from neighbours when the proposed development was advertised. The neighbours objected to the development intruding into the view from their land and to the impact of a structure being built in the front setback.
27 The applicant said the building, being completely open with a low pitched roof, would not adversely affect the streetscape or affect the amenity of the neighbours. The roof would be redesigned to remove the gables and to lower the pitch from 18 degrees to 8.5 degrees which, it was contended, would make it inconspicuous.
The Codes
28 The Tribunal noted that the parties each chose an acceptable development standard from cl 3.2.3 – Set Back of Garages and Carports of the Codes that supported its position.
29 The respondent said the structure would not satisfy the acceptable development criteria of cl 3.2.3 A3.1 which sets as the standard "garages and carports located behind the street setback line". The carport would be in front of the building setback line and therefore not acceptable.
30 The respondent said that neither would the proposed development satisfy the performance criteria of cl 3.2.3 P3 because there would be a substantial structure in front of the street setback line which detracted from the desired streetscape pattern of the immediate locality. The performance criteria includes:
(Page 8)
- "The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings on the street and vice versa."
31 Mr Brooks referred to cl 3.2.3 A3.4 of the Codes which states the following to be acceptable development:
"Carports within the street setback area, provided the width of carport does not exceed 50 per cent of the frontage at the building line and the construction allows an unobstructed view between the dwelling and the street, right-of-way or equivalent."
32 Mr Brooks said that the proposed carport met this acceptable development standard because it occupied about 36% of the frontage of the lot at the building line and there were unobstructed views between the dwelling and the street. It was his submission that because the carport would be an acceptable development and the design would not detract from the streetscape, the development complied with the performance criteria at cl 3.2.3 P3.
The respondent's policies
33 The respondent sought to further strengthen its submissions by referring to its adopted policies DBH 1 and LPP DC 6 and the statement under "Acceptable Development" of Element 2 of the Codes which states:
"Except as otherwise provided for in an adopted Local Planning Policy development that complies with the following is deemed to meet the relevant Performance Criteria".
34 The respondent said its adopted policies included development requirements for carports in the front setback and these were not satisfied by the proposed development.
35 The respondent contended that the proposed development would be in conflict with cl 3(a) of its policy DBH 1 – Urban Design and Streetscape Guidelines, which provides that building alignment was an essential factor in determining whether prevailing pattern and spatial character were continued or interrupted. DBH 1 cl 3(a) also states that "(t)he front setback of new houses should … reflect any existing established pattern within the street".
36 In response, Mr Brooks emphasised the stated objective of Policy DBH 1, which is:
(Page 9)
- "… to conserve and enhance areas of architectural and historic character whilst encouraging harmonious development with the existing authentic character and appearance of the traditional residential areas of Fremantle. The policy also ensures that alterations and additions to existing buildings of historic, cultural and/or of streetscape value respect the character and integrity of those buildings through assessment criteria for new infill residential development and alterations/additions to existing residences."
37 Mr Brooks said Lewington Street was a pleasant street but it was not a street of special architectural or historic character.
38 Mr Brooks further submitted that DBH 1, at cl 3(a), referred specifically to the preferred setback for new houses. The development was an open-sided structure, not a house. Mr Brooks emphasised that the proposed open-sided development, now with the redesigned lower roof profile, would have significantly less impact than a house.
39 Mr Brooks said DBH 1 was general and recommended that developments should, rather than must, meet the standards. This provided an opportunity to allow exceptions and in his opinion an exception should be made in this instance.
40 The respondent further referred to cl 3(f) of DBH 1 which states that "carports or garages in residential development shall comply with the Council's policy on carports and garages". The respondent's LPP DC 6 is concerned with carports in front of dwellings.
41 The respondent considered LPP DC 6 significant as it provided development standards alternative to the Codes. The respondent also cited cl 2.6.2(i) "Scope of Local Planning Policies" of the Codes which provides that a local planning policy of a local government may contain provisions which are:
"more than less stringent than the Codes where expressly permitted under the Codes. The Codes permit Local Planning Policies to be prepared to address local requirements for streetscape, building design, building height, boundary walls …"
42 It was the respondent's submission that the proposed structure did not satisfy any of the criteria in LPP DC 6 necessary to allow the carport in the front setback. Particularly noted was cl 1(i) which states that a carport
(Page 10)
- would not be allowed in the front setback unless "(t)here is an existing pattern of carports/garages in the street".
43 Mr Brooks contended that LPP DC 6 had no effect. This was because for any policy to have effect under cl 2.6 of the Codes it must be adopted according to the requirements of the Model Scheme Text of 1999 and be consistent with the Codes of 2002. LPP DC 6, however, came into existence in 1988. He said there was no evidence as to how LPP DC 6 was adopted.
Comments and conclusion
44 The proposed carport complies with the acceptable development standard set out at cl 3.2.3 A3.4 of the Codes. Mr Brooks for the applicant said that the development therefore complied with the performance criteria of the Codes and this was a reason why the development should be allowed.
45 The Tribunal notes that cl 5.2.2 of LPS 4 requires residential development to comply with the Codes. Clause 10.2.1 of LPS 4 sets out the matters to be considered when determining an application for planning approval and this also requires compliance with the Codes at cl 10.2.1(c). Compliance with the Codes, however, is not the end of the matter. Compliance with the Codes is a necessary, but not a sufficient condition, of itself, to approve a development. The Tribunal is required to have regard to the other relevant considerations set out in cl 10.2.1: Dumbleton & Anor and Town of Bassendean[2005] WASAT 145 [18]-[23].
46 Clause 10.2.1(f) of LPS 4 requires consideration of any planning policy adopted under cl 2.5, and cl 10.2.1(o) requires consideration of the preservation of the amenity of the locality. The respondent's policies DBH 1 and LPP DC 6 provide guidance on assessing the amenity of a locality.
47 In respect of DBH 1, the applicant has properly noted that the stated objective is concerned with the conservation and enhancement of the authentic character and appearance of the traditional residential areas of Fremantle. The Tribunal agrees with the applicant that there is nothing in the architecture and streetscape of Lewington Street that would identify it as traditional Fremantle character. It is just an ordinary suburban street, albeit with a park on one side, of different houses from about the 1960s and 1970s at similar setbacks which provides it with its own character. Clause 3(a) of DBH 1 is in Section 3 headed "New Infill Development" and refers to controls to achieve the objectives concerned with traditional
(Page 11)
- Fremantle character. The Tribunal has noted that DBH 1 adapted certain generally relevant urban design principles, but the policy is directed to older, more historic localities and is therefore not relied on in the consideration of this matter.
48 LPP DC 6 is titled "Garages/Carports in Front of Dwellings/Buildings". The applicant has argued that LPP DC 6 should have no effect because of its age relative to the Codes and the absence of information on the steps taken by the City in its adoption.
49 The Tribunal considers LPP DC 6 is directly relevant to this matter. LPP DC 6 was adopted in August 1988. The respondent's Town Planning Scheme 3 (TPS 3) had been gazetted in December 1987 and so was in place when LPP DC 6 was adopted. TPS 3 was replaced by LPS 4 in 2007 and cl 2.6 of LPS 4 states:
"Where a Local Planning Policy has been advertised and adopted in accordance with the provisions of Town Planning Scheme No 3, it shall continue to have effect and may be amended or revoked as if it were a Local Planning Policy under the current Scheme."
50 The applicant pointed out that there had been no evidence advanced to show LPP DC 6 had been properly adopted. Nothing has been advanced either, to show it was adopted improperly. The Tribunal notes that LPP DC 6 is in the respondent's policy manual, a public document, and has been a consideration in development applications since adoption. It is further noted that since LPS 4 with cl 2.6 included was gazetted in March 2007, LPP DC 6 has remained in place as a policy adopted when TPS 3 was in place. It might be argued that LPP DC 6 has not been adopted according to the procedures of the model scheme text as required by cl 2.6 of the Codes and therefore cannot replace the provisions of Element 2. The Tribunal, however, has cautiously adopted a presumption of regularity in the formulation and adoption of LPP DC 6 by the respondent in the absence of contrary evidence and so is of the view that LPP DC 6 is a policy to which regard must be had under cl 10.2.1(f) of LPS 4.
51 The Tribunal notes that the objectives of LPS 4 include at cl 4.2.1 the requirement that development be sympathetic to local amenity, character and streetscape. The Tribunal has therefore considered the development proposal in the light of the objectives of LPS 4 and LPP DC 6, conscious of course that a policy is not to fetter the exercise of discretion.
(Page 12)
52 LPP DC 6 states:
"The purpose of this policy is to establish criteria for the construction of garages and carports so as to protect the existing streetscape and character of dwellings and new developments by utilising patterns familiar to Fremantle."
53 Under the heading "Policy" LPP DC 6 states:
"1 Carports and garages will not be allowed in the front setbacks unless:
(i) There is an existing pattern of carports/garages in the street …"
55 The applicant disagreed, saying there would be little impact on the streetscape and amenity, referring to the open-sided construction, the view to and from the house and the low profile of the redesigned roof. An additional point raised by the applicant was that it was necessary the proposed carport be in front of the house as it could not be built at the rear. The difference in levels would be so great there would be no direct on-site access from the carport to the house. A carport in this location would not serve any useful purpose for the applicant.
56 The Tribunal notes that a carport behind the house would relate poorly to the house, but this is not a situation where there is no feasible alternative to covered parking in the front setback. The existing house includes two garages, although for her own sincerely held reasons the applicant would rather these not be used. There is also paved parking available in the setback between the crossover and the garages. Adequate on-site parking can be provided. The difficulty arises because the applicant wants a carport in the front setback.
57 The Tribunal acknowledges that the proposed carport would be open-sided, but is of the view that it would remain a significant solid-roofed structure with substantial columns in a front setback in a street where the existing streetscape pattern in this part of Fremantle is
(Page 13)
- one of no development in the front setback. The Tribunal has formed the view that the proposed development would not be consistent with the local character and not be sympathetic to the established streetscape pattern and so would be detrimental to the visual amenity of the locality. That is, the carport would be in conflict with the LPS 4 and LPP DC 6 objectives of safeguarding the local character and amenity.
58 The Tribunal has therefore determined to dismiss the application and affirm the refusal of the City of Fremantle.
Applicant's personal circumstances
59 Mr Brooks' submissions included a request that the applicant's special circumstances, including the health of Mrs De Campo and treatment she might need, be taken into consideration in addition to the planning merits of the proposed development. At s 241(3) of the PD Act, it states:
"In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles."
60 Circumstances special to the applicant might be a consideration where those circumstances are found to constitute hardship and the application is for approval to subdivide a lot into not more than three lots. The PD Act does not provide for hardship to be a consideration in the determination of an application for review where the proposal is for a development under a local planning scheme. The Tribunal has therefore not given any weight to the applicant's personal circumstances in the determination of this matter.
Orders
The orders of the Tribunal are:
1. The application for review is dismissed.
2. The refusal of the proposed development by the City of Fremantle is affirmed.
(Page 14)
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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