EVANS and TOWN OF CAMBRIDGE
[2016] WASAT 64
•31 MAY 2016
EVANS and TOWN OF CAMBRIDGE [2016] WASAT 64
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 64 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:114/2015 | 2 FEBRUARY 2016 AND FINAL SUBMISSIONS RECEIVED 8 MARCH 2016 | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 31/05/16 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed; decision under review affirmed | ||
| A | |||
| PDF Version |
| Parties: | MATT EVANS TOWN OF CAMBRIDGE |
Catchwords: | Town planning Development application Access to property Use of rear right-ofway Preservation of open streetscape Safety and ease of access Proposed two-storey dwelling with double garage at front of property Planning framework favouring access from rear of property Right-ofway an upgraded narrow laneway Laneway formerly used from 1920s to 1930s for 'night cart' operations Laneway now a significant public asset Evidence of relatively low risk for users of laneway Evidence of consistent application of policy by local government Development application refused by Tribunal Tribunal upholding policy as soundly based Discussion of planning policies which 'hold the line' Recognition that policies drafted in knowledge of circumstances of suburb including laneway limitations Words and phrases: 'legible access'; 'design principles' |
Legislation: | Local Planning Policy 3.1: Streetscape Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Reg 10(4), Sch 2 Residential Design Codes of Western Australia Pt 5, Pt 5.3.5, Pt 7.3.1, Pt 7.3.2 Town of Cambridge Town Planning Scheme No 1, cl 5(3), cl 5(3)(g)(i), cl 38(4), cl 39(3), cl 48(2) |
Case References: | Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 Crisp and Town of Cambridge [2014] WASAT 71 Cuzeno Pty Ltd v Hurstville Council [2005] NSWLEC 677 D'Orazio Enterprises Pty Ltd and City of Stirling [2013] WASAT 152 Forte v Town of Claremont [2013] WASAT 35; (2013) 84 SR (WA) 89 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 Miller v City of Stirling [2007] WASAT 247; (2007) 56 SR (WA) 128 Puma Energy Australia and City of Cockburn [2016] WASAT 36 Radford and City of Vincent [2014] WASAT 67 Snedden v Town of Victoria Park [2009] WASAT 18, (2009) 60 SR (WA) 236 Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210; (2013) 195 LGERA 317 Tooth v City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198 Yarra Ranges C43 (PSA) [2008] PPV 20 |
Orders | 1. The application for review is dismissed., 2. The decision under review is affirmed. |
Summary | Mr Matt Evans, the applicant, proposed to demolish his existing dwelling in Holland Street, Wembley in the Town of Cambridge. In its place, he proposed to erect a twostorey dwelling with a double garage at the front of the property. The Town of Cambridge refused the development, in effect requiring access to the dwelling from the rear rightofway (Gaynor Lane).,Gaynor Lane, which is owned by the Town, is a narrow laneway, dating from the 1920s or 1930s, and originally designed and used for 'night cart' operations. In late 2012, the lane was significantly reconstructed and upgraded by the Town. The Town has a written policy in place (following a lead from as far back as 2002) of requiring access from such rear laneways (where suitable). The purpose of the policy, so far as was relevant, was to encourage an 'open streetscape', based upon, amongst other matters, reducing the impact of access points on the streetscape. The Tribunal found that the policy met the standard of being soundly based, transparent and a directly applicable planning policy aimed at a wider public interest. In addition, the Tribunal reaffirmed previous Tribunal decisions that had acknowledged that such policies could hold the line against further deterioration in a streetscape, and were made and issued in the light of those circumstances (including difficulties with rear access).,Here, the applicant demonstrated safety and access problems (for example, safety distances, a lack of truncation, problems with sightlines and the like) resulting from the use of Gaynor Lane. On the face of it, Mr Evans had established sufficient reasons to displace the application of the policy. However, the Tribunal reasoned that the 'perfect should not be the enemy of the good'; it was necessary to balance significant countervailing matters, including the efficient use of such land (which was valuable public infrastructure) and the recognition of the potential use of such laneways, to achieve, over time, an 'open streetscape' policy. There was evidence that the respondent had been consistent in pursuit of this aim.,The Tribunal accepted expert evidence that the existing situation had an inherent low level of risk which was not at all unusual for such suburban environments. The level of risk had to be balanced against the considerable countervailing public interest in seeing the Town's infrastructure upgraded and deployed to achieve the policy objective of open streetscapes.,The Tribunal found that although the situation was far from ideal, on balance, the access situation was neither so unsafe nor so unsatisfactory as to warrant approval of the applicant's current proposal. The Town's refusal of the proposed development was therefore affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : EVANS and TOWN OF CAMBRIDGE [2016] WASAT 64 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 2 FEBRUARY 2016 AND FINAL SUBMISSIONS RECEIVED 8 MARCH 2016 DELIVERED : 31 MAY 2016 FILE NO/S : DR 114 of 2015 BETWEEN : MATT EVANS
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning Development application Access to property - Use of rear right-ofway - Preservation of open streetscape - Safety and ease of access - Proposed two-storey dwelling with double garage at front of property - Planning framework favouring access from rear of property - Right-ofway an upgraded narrow laneway - Laneway formerly used from 1920s to 1930s for 'night cart' operations - Laneway now a significant public asset - Evidence of relatively low risk for users of laneway - Evidence of consistent application of policy by local government - Development application refused by Tribunal - Tribunal upholding policy as soundly based - Discussion of planning policies which 'hold the line' - Recognition that policies drafted in knowledge of circumstances of suburb including laneway limitations Words and phrases: 'legible access'; 'design principles'
Legislation:
Local Planning Policy 3.1: Streetscape
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Reg 10(4), Sch 2
Residential Design Codes of Western Australia Pt 5, Pt 5.3.5, Pt 7.3.1, Pt 7.3.2
Town of Cambridge Town Planning Scheme No 1, cl 5(3), cl 5(3)(g)(i), cl 38(4), cl 39(3), cl 48(2)
Result:
Application for review dismissed; decision under review affirmed
Summary of Tribunal's decision:
Mr Matt Evans, the applicant, proposed to demolish his existing dwelling in Holland Street, Wembley in the Town of Cambridge. In its place, he proposed to erect a twostorey dwelling with a double garage at the front of the property. The Town of Cambridge refused the development, in effect requiring access to the dwelling from the rear rightofway (Gaynor Lane).
Gaynor Lane, which is owned by the Town, is a narrow laneway, dating from the 1920s or 1930s, and originally designed and used for 'night cart' operations. In late 2012, the lane was significantly reconstructed and upgraded by the Town. The Town has a written policy in place (following a lead from as far back as 2002) of requiring access from such rear laneways (where suitable). The purpose of the policy, so far as was relevant, was to encourage an 'open streetscape', based upon, amongst other matters, reducing the impact of access points on the streetscape. The Tribunal found that the policy met the standard of being soundly based, transparent and a directly applicable planning policy aimed at a wider public interest. In addition, the Tribunal reaffirmed previous Tribunal decisions that had acknowledged that such policies could hold the line against further deterioration in a streetscape, and were made and issued in the light of those circumstances (including difficulties with rear access).
Here, the applicant demonstrated safety and access problems (for example, safety distances, a lack of truncation, problems with sightlines and the like) resulting from the use of Gaynor Lane. On the face of it, Mr Evans had established sufficient reasons to displace the application of the policy. However, the Tribunal reasoned that the 'perfect should not be the enemy of the good'; it was necessary to balance significant countervailing matters, including the efficient use of such land (which was valuable public infrastructure) and the recognition of the potential use of such laneways, to achieve, over time, an 'open streetscape' policy. There was evidence that the respondent had been consistent in pursuit of this aim.
The Tribunal accepted expert evidence that the existing situation had an inherent low level of risk which was not at all unusual for such suburban environments. The level of risk had to be balanced against the considerable countervailing public interest in seeing the Town's infrastructure upgraded and deployed to achieve the policy objective of open streetscapes.
The Tribunal found that although the situation was far from ideal, on balance, the access situation was neither so unsafe nor so unsatisfactory as to warrant approval of the applicant's current proposal. The Town's refusal of the proposed development was therefore affirmed.
Category: A
Representation:
Counsel:
Applicant : Mr D Caddy (Acting as Agent)
Respondent : Ms A Butterworth (Acting as Agent)
Solicitors:
Applicant : The Planning Group (TPG)
Respondent : Allerding & Associates
Case(s) referred to in decision(s):
Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Crisp and Town of Cambridge [2014] WASAT 71
Cuzeno Pty Ltd v Hurstville Council [2005] NSWLEC 677
D'Orazio Enterprises Pty Ltd and City of Stirling [2013] WASAT 152
Forte v Town of Claremont [2013] WASAT 35; (2013) 84 SR (WA) 89
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Miller v City of Stirling [2007] WASAT 247; (2007) 56 SR (WA) 128
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Radford and City of Vincent [2014] WASAT 67
Snedden v Town of Victoria Park [2009] WASAT 18, (2009) 60 SR (WA) 236
Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210; (2013) 195 LGERA 317
Tooth v City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198
Yarra Ranges C43 (PSA) [2008] PPV 20
Introduction
1 Mr Matt Evans (applicant), seeks the Tribunal's assistance to overrule the Town of Cambridge's decision not to approve his proposed development (a replacement twostorey dwelling), a development which seeks to avoid rear access to his property. Mr Evans' proposal contemplates access to a double garage at the front of his property.
2 The Town of Cambridge (respondent) seeks to enforce its policy position of encouraging open streetscapes by the use of upgraded rightsof-way located at the rear. The applicant points to safety and access issues in relation to the use of such laneways.
3 The Tribunal has determined, after a detailed review of the planning framework and the expert evidence, that the correct and preferable decision in the circumstances is to affirm the decision under review.
Subject land
4 The applicant accepts the following description of the subject land taken from the respondent's statement of issues, facts and contentions:
The [subject land] is described as Lot 200 (No [94]) Holland Street, Wembley [and] comprises a total site area of 634 square metres and is orientated westeast. The lot has a frontage of 14.83 metres to Holland Street at the western boundary, and at the rear, eastern boundary, the same frontage to a rightofway named Gaynor Lane. The Holland Street [road] reserve is approximately 20 metres wide and [the] Gaynor Lane pavement is approximately 4 metres wide and is sited within a 5 metre wide rightofway reserve.
The existing green title lot currently contains a single storey single dwelling with one crossover to Holland Street [with a single front garage] in addition to a garage to the rear which has sole access to the rightofway, with truncations either side of [that] garage access.
5 The subject land is zoned low density Residential R20 under the Town of Cambridge Town Planning Scheme No 1 (TPS 1).
6 The Tribunal was assisted by a site visit to the subject land in the presence of the parties, their experts and the parties' representatives.
History of the application
7 In August 2014, the applicant sought demolition of the existing single storey dwelling on the subject land (described above) and other structures to be replaced with 'a new two storey dwelling with frontage to Holland Street … abutting [the] existing right of way (Gaynor Lane) to the rear'. The subject land currently has 'a single garage alongside the [existing] dwelling'.
8 The central issue in the review is, in practical terms, the demolition of the existing garage structure at the rear of the subject land, to be replaced with, as part of the new twostorey house, a double garage at the front of the property.
9 Following refusal by the respondent and subsequent mediation in this Tribunal, upon a reconsideration decision (in March 2015), the Council of the respondent resolved to refuse a revised proposal upon the following grounds:
(a) the proposal does not satisfy the deemedtocomply provisions of the Residential Design Codes of Western Australia regarding the use of a rightofway to minimise access points from the street, creating a negative impact on the streetscape, landscaping and kerbside parking;
(b) the proposal does not meet the deemedtocomply provisions of the [respondent's Local Planning Policy 3.1: Streetscape] as [the proposed development] does not take access from the rear laneway and therefore does not reduce the impact of access points on the streetscape;
(c) the proposal does not meet the [respondent's Local Planning Policy 3.1: Streetscape] regarding the number of crossovers permitted when a rightofway is available for access, impacting streetscape and kerbside parking.
10 Mr Caddy, appearing for the applicant, drew attention to one important development that came out of reconsideration. In the officers' report to the respondent's Development Committee on 18 August 2015, the following position was reached (emphasis added):
The Town has considered all additional information and plans provided as a result of the [State Administrative Tribunal] process to date, and through this a revised assessment against the Design Principles of the Residential Design Codes … for 'Vehicular Access' has been provided. The nine key points agreed to by both traffic consultants [reproduced below, under the heading 'Traffic and road safety evidence'] show that there is a compelling argument to support access from the primary street [Holland Street] in this instance, given the safety issues with Gaynor Lane and access/egress onto Grantham Street. The most significant reason relates to the lack of a visual truncation on the corner of Gaynor Lane and Grantham Street, resulting in poor pedestrian and vehicle sightlines. As such, it is considered that vehicular access from Gaynor Lane would not be as favourable compared with from Holland Street in respect to vehicle access safety, legible access and pedestrian safety. Therefore, access from the primary street (Holland Street) is supported in this instance under Design Principles.
This SAT case has brought up relevant laneway safety issues which the Town, to date, has not normally considered in development assessments. This decision is based on the merits of this particular application and the findings of detailed analysis of the specific site and locality, and the Town will continue to implement the Access and Crossovers provisions of the Streetscape Policy. This recommendation may have implications for future applications on sites with rightofway access. To supplement this, a separate recommendation relates to the investigation of a strategic rightofway policy which would further assist the Town in identifying laneway safety and access issues and determining relevant applications for planning approval.
- So far as the Tribunal has been made aware, that proposed 'strategic rightofway policy' has not yet been developed.
Issues
11 The parties have essentially agreed upon the following interrelated matters as the issues before the Tribunal:
1) Whether the proposed access off the primary street (Holland Street) is acceptable, having regard to the respondent's Local Planning Policy 3.1: Streetscape (Streetscape Policy) and the relevant design principles of the Residential Design Codes of Western Australia (R Codes) in relation to vehicular access.
2) Whether the laneway to the rear (Gaynor Lane) is appropriate and safe to be used as the main access for the site.
12 Ms Butterworth, appearing for the respondent, summarised the respondent's case as follows:
The [respondent] has modified its [Streetscape Policy] since its introduction in 2009. More specifically, the access provisions of the policy [that is, amongst other matters, requiring access from suitable rightsofway] were not [finally in force] until after September 2014, when they were endorsed by the Western Australian Planning Commission [WAPC]. Since introduction of the access provisions, the [respondent has been] actively seeking to reduce the impact of access points on the streetscape by requiring rear vehicle access for those properties with a rightofway … available. Gaynor Lane [the rightofway here, which is in public ownership] has been sealed and drained and suitable for use since approximately October 2012. Humphrey Lane (on the western side of Holland Street) has been sealed and drained and suitable for use since about December 2014.
…
Accordingly, it is considered that the proposal to allow a double garage with a wider crossover and driveway than what presently exists [see below] when there is a rightofway available for access does not meet the design principle of 'reduced' impact of access points on the streetscape as the laneway is available and suitable for use.
- However, as will appear below, elements of the planning framework, since at least 2002, have favoured access from rightsofway where that option were to be available upon a redevelopment.
13 Mr Caddy framed his case in his opening as 'whether the [Streetscape Policy] should be relaxed in respect of [this] particular case … on safety grounds'. Mr Caddy contended that 'access from Holland Street is more acceptable from a safety point of view than access from Gaynor Lane as it allows for appropriate safety distances and sightlines to be achieved'.
Planning framework
14 The following matters relating to the applicable planning framework are common ground between the parties.
The Town Planning Scheme
15 Clause 5(3) of TPS 1 outlines the general objectives of TPS 1. The following objectives are said to be relevant:
…
(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which;
(i) recognises the individual character and needs of localities within the Scheme Area; and
(ii) can respond readily to change;
(d) to ensure planning at a local level is consistent with the Metropolitan Region Scheme and wider regional planning strategies and objectives;
(e) to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities;
… [and]
(g) to co-ordinate and ensure that development is carried out in an efficient and environmentally responsible manner which:-
(i) makes optimum use of the Town's growing infrastructure and resources[.]
(a) the provisions of [TPS 1] and of any other written law applying within the Scheme Area including the Metropolitan Region Scheme;
(b) any relevant Planning Policy;
(c) any Statement of Planning Policy of the [WAPC];
(d) any planning study approved by the Council;
(e) any submission accompanying or related to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenities of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
- Also said to be relevant are the factors identified under cl 39(3) of TPS 1, which deals with 'noncomplying' applications for planning approval, as follows:
39. DETERMINATION OF NON-COMPLYING APPLICATIONS FOR PLANNING APPROVAL
(1) In this clause:
(a) an application for planning approval which does not comply with a standard or requirement of this Scheme (including a standard or requirement set out in a Planning Policy), where the standard or requirement does not provide for any permitted variation, is called a 'noncomplying application'; and
(b) a non-complying application does not include an application involving a prohibited use.
(2) Subject to subclause (3), the Council may refuse or approve a noncomplying application.
(3) The Council cannot grant planning approval for a non-complying application unless it is satisfied by an absolute majority that:-
(a) if approval were to be granted, the development would be consistent with:-
(i) the orderly and proper planning of the locality;
(ii) the conservation of the amenities of the locality; and
(iii) the statement of intent set out in the relevant Precinct Planning Policy; and
(b) the non-compliance would not have any undue adverse affect on:
(i) the occupiers or users of the development;
(ii) the property in, or the inhabitants of, the locality; or
(iii) the likely future development of the locality. The Council cannot grant planning approval for a non-complying application unless it is satisfied by an absolute majority that:-
(a) if approval were to be granted, the development would be consistent with:-
(i) the orderly and proper planning of the locality;
(ii) the conservation of the amenities of the locality; and
(iii) the statement of intent set out in the relevant Precinct Planning Policy; and
(b) the non-compliance would not have any undue adverse affect on:
(i) the occupiers or users of the development;
(ii) the property in, or the inhabitants of, the locality; or
(iii) the likely future development of the locality.
17 As has been indicated above, a local planning policy, the Streetscape Policy, is centrally relevant to the decision to be made in this case. Clause 48(2) of TPS 1 provides that, in preparing a local planning policy, regard is to be had to the following matters:
(a) the purpose for which land is set aside under this Scheme;
(b) the orderly and proper planning of the locality;
(c) the conservation of the amenities of the locality;
(d) any strategies, studies or objectives adopted by the Council; and
(e) any other matters it considers to be relevant.
Planning Regulations 2015
18 Since this matter was heard and the decision reserved, the Tribunal, constituted by Parry DCJ, a Deputy President of this Tribunal, and Member P de Villiers, in Puma Energy Australia and City of Cockburn [2016] WASAT 36 (Puma) has considered the effect of certain 'deemed provisions' found in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations). Regulation 10(4) of the LPS Regulations provides that Sch 2's 'deemed provisions' are applicable to all local planning schemes, such as TPS 1, 'whether or not they are incorporated into the local planning scheme text'. In short, the 'deemed provisions' apply to the extent that there is any inconsistency between a town planning scheme and Sch 2.
19 One of these 'deemed provisions' is cl 67 of Sch 2 which provides that a decisionmaker is to have 'due regard' to the following matters in making planning decisions (so far as they appear relevant to the current matter):
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c) any approved State planning policy;
…
(e) any policy of the Commission;
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
...
(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
...
(r) the suitability of the land for the development taking into account the possible risk to human health or safety;
(s) the adequacy of
(i) the proposed means of access to and egress from the site; and
(ii) arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
...
(w) the history of the site where the development is to be located;
(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y) any submissions received on the application;
…
(zb) any other planning consideration the local government considers appropriate.
20 In Puma, the Tribunal concluded, at [45] and [46]:
Clause 67 of the 'deemed provisions' is inconsistent with [the provisions of the Town Planning Scheme there under consideration: 'TPS 3'] (and with all other provisions of local planning schemes based on cl 10.2 of the former Model Scheme Text [that is, the former Model Scheme Text found in Appendix B of the Town Planning Regulations 1967 (WA)]), because both cl 67 of the 'deemed provisions' and [the relevant criteria] clearly seek to provide a comprehensive and exhaustive set of considerations which the local government (and the Tribunal on review) is required to have 'due regard' to, insofar as they are relevant, in considering an application for development approval. This is apparent, in the case of each of these provisions, from the large number of matters for consideration (in 27 paragraphs in each provision), the breadth of planning considerations stated in each provision, and the final 'catchall' provision in each, namely 'any other planning consideration the local government considers appropriate' (cl 67(zb) of the 'deemed provisions') and 'any other consideration the Local government considers relevant' [found in the provisions of the Town Planning Scheme there under consideration]). The range of planning considerations in each of the provisions is also strikingly similar, although there are some differences between the provisions.
As cl 67 of the 'deemed provisions' seeks to provide a comprehensive and exhaustive set of considerations for the determination of a development application under TPS 3 and therefore to perform precisely the same function as [the relevant provisions of] TPS 3 (and all other provisions in local planning schemes based on cl 10.2 of the Model Scheme Text), cl 67 of the 'deemed provisions' is inconsistent with [the relevant provisions of] TPS 3 (and all equivalent provisions in other local planning schemes). Applying the ordinary, natural meaning of 'inconsistency', there is incompatibility, incongruity and lack of harmony between the substance of cl 67 of the 'deemed provisions' and the substance of [the relevant provisions of] of the TPS 3, resulting from the 'appearance of exhaustiveness' of cl 67 of the 'deemed provisions' on the subject of the matters for consideration in the determination of development applications under TPS 3[.]
- Accordingly, in Puma the proposed development was assessed under the criteria found in cl 67 of Sch 2 of the LPS Regulations.
21 As the matter was not argued before me, I reach no final conclusion on the case where, as here, a town planning scheme prescribes some criteria (see cl 38(4) of TPS 1, referred to above) which fall well short of the extensive criteria prescribed under cl 67 of the 'deemed provisions'. This is so probably because, for whatever reason, cl 38(4) of TPS 1 was not based upon the Model Scheme Text.
22 The better view would seem to be that as 'incompatibility, incongruity [or a] lack of harmony' is still the result, the 'deemed provisions' apply to the decision to be made in this case.
23 The matter was briefly touched upon in the parties' opening and closing addresses, and attention was drawn by the parties' representatives to, particularly, it seems, cl 67(r) cl 67(t) of the 'deemed provisions' set out above, dealing with traffic, site access and safety factors, all of which matters are key issues in the review. In her oral evidence, Ms Butterworth expressly noted cl 67(g) of Sch 2 dealing with 'local planning polic[ies]' to which regard was to be had by a decisionmaker.
24 In these circumstances, there is no prejudice flowing to either party by proceeding to assess the proposed development by reference to cl 67 of Sch 2, so far as is relevant, in place of cl 38(4) of TPS 1.
25 It was not suggested that any other provision of Sch 2 has application in the present review.
Residential Design Codes of Western Australia
26 The R Codes are also relevant to these proceedings. The R Codes contain general objectives, including:
To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives.
27 Part 5.1 of the R Codes provides objectives for the deemedtocomply and design principles listed under Pt 5 of the R Codes, including:
(a) To ensure that residential development meets community expectations in regard to appearance, use and density.
(b) To ensure that designs respond to the key natural and built features of the area and respond to the local context in terms of bulk and scale, or in the case of precincts undergoing a transition, will respond to the desired future character as stated in the local planning framework.
28 Part 5.3.5 of the R Codes deals with vehicular access. It was agreed by the parties that the relevant design principles under Pt 5.3.5 (that is, 'P 5', but from October 2015, renumbered as 'P5.1') of the R Codes, are as follows:
Vehicular Access
Vehicular access provided for each development site to provide:
• vehicle access safety;
• reduced impact of access points on the streetscape;
• legible access;
• pedestrian safety;
• minimal crossovers; and
• high quality landscaping features.
29 However, the parties have agreed that the relevant deemedtocomply provisions of the R Codes have been replaced by the provisions of the Streetscape Policy. Clause 7.3.1 of the R Codes lists provisions of the R Codes whereby local planning policies can amend or replace the deemedtocomply provisions. Clause 5.3.5 of the R Codes is not mentioned in that list. However, cl 7.3.2 of the R Codes provides that:
[A] local government may, with the approval of the WAPC amend any other deemedtocomply provision within the RCodes by means of a local planning policy[.]
30 Here, the Western Australian Planning Commission (WAPC) has approved the Streetscape Policy (by way of correspondence dated 9 September 2014) relating to vehicle access to replace the deemedtocomply provisions of cl 5.3.5 of the R Codes. Those provisions are set out below but, critically, include the following replacement specification:
Garages, carports and/or parking spaces must be located off a rightofway (laneway) where an adequately formed right-of-way is available for use of the relevant lot.
31 Of some interest is that what was replaced included the following deemedtocomply specification under 'vehicular access':
C5.1 Access to on-site car parking spaces to be provided:
• where available, from a right-of-way available for lawful use to access the relevant lot and which is adequately paved and drained from the property boundary to a constructed street[.]
32 Ms Butterworth drew attention to the fact that the R Codes in their 2002 iteration had a similar provision, but to stronger effect. 'Acceptable Development' Design Element A4.1 provided as follows (emphasis added):
A4.1 Access to onsite parking to be provided, where available, solely from a rightofway available for the use of the relevant lot and adequately paved and drained from the property boundary to a constructed street, or from a secondary street where a rightofway does not exist.
- However, as Mr Caddy pointed out, it was always possible, in effect, to 'satisfy' that standard by demonstrating, with appropriate evidence, that vehicular access could be 'provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape' (emphasis added): 'Performance Criteria' 3.5.4 ('Vehicular Access', P4).
33 As has been mentioned, the subject land has, on the face of it, an apparently suitable rightofway to the rear of the property (Gaynor Lane). The parties have expressly agreed that (emphasis added):
[as the applicant] proposes sole vehicular access from the primary street frontage (Holland Street) and therefore does not meet the deemedtocomply requirements of [the Streetscape Policy replacing the R Codes] the application is to be assessed under the Design Principles of Part 5.3.5 of the [R Codes].
34 These design principles are set out above.
35 In the interpretation of these 'alternative' criteria (including any authorised replacement provisions under a local policy), I reiterate my view previously expressed in Snedden v Town of Victoria Park [2009] WASAT 18, (2009) 60 SR (WA) 236, at [33], that:
… it is clear that the performance [now 'design principles'] criteria and the acceptable development [now 'deemedtocomply'] criteria, while in a sense being independent from [one] another, do in fact have a direct relationship with one another and cannot be compartmentalised as if they were completely separate entities. After all, they flow from the same pen and are issued simultaneously in pursuit of the same object. Moreover, by their very nature, performance [now 'design principles'] criteria tend to be extremely generalised, pithily expressed and 'opentextured' in comparison to the relative minutiae found … in the accompanying acceptable development [now 'deemedtocomply'] criteria.
36 Indeed, as WAPC Planning Bulletin 109/2013 makes clear, the overarching 'intention of the RCodes has always been to encourage site specific design leading to innovation and the [former] acceptable development requirements were identified as only one way to meet the [former] "performance criteria".'
Local Planning Policy
37 Notwithstanding that the main focus is on the design principles set out above, the parties have agreed that there is general material contained in the Streetscape Policy which is also relevant to the exercise of planning discretion in this review.
38 Importantly, there is the statement of intent and objectives of the Streetscape Policy, which is as follows (emphasis added):
• Achieve street setbacks which, together with the type of house, fits in with the established and/or desired development pattern for the area;
• Maintain the openness of streetscapes to create a safe and attractive pedestrian environment through passive surveillance of the street and houses;
• Reduce the dominance of garages, carports, driveways and hard surfacing, fences and other structures which detract from the street presentation of homes and gardens;
• Encourage the retention and improvement of plantings and landscaping in the front garden and on the verge, including the retention of healthy street trees and;
• Prohibit the excessive use of hard surfaces in the front setback, to retain the green character of our neighbourhoods.
39 The parties have also agreed that, notwithstanding the application of the relevant design principles to be found in the R Codes, such provisions must be applied having regard to the provisions of the Streetscape Policy which apply to the Wembley Precinct within which the subject land is located. The following 'replacement' deemedtocomply provisions are, as already mentioned, agreed to be relevant (at 3.1.12 of the Streetscape Policy):
The demand for double garages, large carports and multiple vehicles onsite has resulted in many streetscapes becoming dominated by large crossovers and driveways at the expense of landscaping, street trees and kerbside parking.
Where a rightofway (laneway) adjoins a lot, access is to be taken from the laneway. If there is no laneway, then access may be taken from the street. In the case of a corner lot, access is to be taken from the secondary street.
Garages, carports and/or parking spaces must be located off a rightofway (laneway) where an adequately formed rightofway is available for use of the relevant lot.
40 The Streetscape Policy also addresses the 'precedent' issue, namely the effect of existing residential development which nowadays may not necessarily comply with the Streetscape Policy. Ms Butterworth properly conceded, however, that this matter still remains a matter of discretion. The Streetscape Policy provides as follows:
In every neighbourhood there will be examples of houses and features that do not comply with this policy. Policies cannot undo what has been done and they are often designed to prevent things that have been allowed in the past from reoccurring.
For this reason, the existence of nearby houses or features that do not comply with this policy will have no influence on whether a development or feature will be approved.
41 This position seems to be broadly consistent with Tooth v City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198 (Tooth) where the Tribunal held that, despite apparent examples of previous inconsistent development, a relevant local policy still had application in the assessment of a proposed carport, and that the approval of that proposed development 'would be inconsistent with [its] intent'. Further, the Tribunal held, at [3]:
… that simply because examples could be provided showing some deterioration of the streetscape, it did not mean that the policies ceased to have work to do, including preventing the further deterioration of streetscape. The policies were made and issued in the light of those circumstances.
42 Here, the circumstances in which the Streetscape Policy is to apply must be taken to include knowledge of the difficulties of use of, and access to, narrow rightsofway at the rear of such properties.
Applicant's evidence
43 Mr Evans and his wife provided witness statements to the hearing, and Mr Evans gave some supplementary oral evidence.
44 The witness statements mainly go to the Evans' personal and family circumstances, and their personal observations on the perceived risks to pedestrians (particularly young children, including their own) arising out of an increase over time of vehicles using the rear laneway. They acknowledged that the respondent had painted yellow warning lines on the crossover from the laneway to busy Grantham Street. They also noted obstructions (for example, parking of tradespersons' vehicles) already occurring in the narrow, albeit upgraded, laneway (relative to the existing street access width).
45 In his oral evidence, Mr Evans pointed out the design difficulties that would flow if he had to use his rear yard for a double garage (instead of in the front of the site, as proposed) which would impact on the recreational use of that space, including limiting the possibility of a swimming pool being built there for family use.
Planning evidence
46 The two planners engaged in the case, Ms Butterworth, for the respondent, and Mr Caddy, for the applicant, gave their expert oral testimony jointly, having provided individual witness statements.
47 It is convenient to first set out their respective views, such as they were, on the six indicators ('vehicle access safety; reduced impact of access points on the streetscape; legible access; pedestrian safety; minimal crossovers; and high quality landscaping features') found in the design principles in the R Codes. As the traffic engineer engaged by the respondent, Mr Laybutt, also gave his written opinion on these factors, I have made reference to those views immediately below, where those views are material to the issues to be determined.
48 I observe that, in a planning context, design principles are generally the'outcomes that must be met': see that description found in the Development Control Plan (DCP) referred to in Cuzeno Pty Ltd v Hurstville Council [2005] NSWLEC 677, at [13] (emphasis added).
49 Here, I think that these six indicators are aimed at a cumulative outcome of securing vehicular (and related) access for each development site in the broad terms stated. Of course, each particular factor will have its own relevance, weight and importance according to the circumstances of the case, including the features of the site, the immediate locality and the proposed development in the context of the material presented to the Tribunal by the parties.
Vehicle access safety
50 Properly, both planning experts deferred to the evidence of the expert traffic engineers on this key issue. Therefore, this issue is considered further below. However, as has already been indicated, Mr Caddy saw this as the overarching issue.
51 Mr Laybutt's view was, with respect to Gaynor Lane, that 'vehicle access safety [could be] achieved and conflict [would be] reduced as vehicles do not cross the footpath to enter or exit the [subject land]'. Mr Laybutt's views are discussed in more detail, below.
Reduced impact of access points on the streetscape
52 Ms Butterworth points out that the proposed development, while not increasing the number of crossovers on the lot, will nevertheless increase the size of the crossover (for the new double garage) from approximately 3.5 to 4.5 metres in width. Ms Butterworth also contended that to give approval to the proposed development would be an example of the very thing sought to be discouraged in the complementary object found in the Streetscape Policy set out above, namely:
The demand for double garages, large carports and multiple vehicles onsite has resulted in many streetscapes becoming dominated by large crossovers and driveways at the expense of landscaping, street trees and kerbside parking.
53 I will return below to the characterisation of the existing streetscape.
54 Mr Laybutt said that 'if vehicle access was provided via Gaynor Lane and the existing crossover removed, there would be a small benefit in pedestrian/cyclist amenity and safety on Holland Street as there would be one less conflict point'.
Legible access
55 In this context, 'legible' means 'capable of being discerned or distinguished' (Macquarie Dictionary). This was the broad sense in which the term was used when a Victorian Planning Panel noted the following in Yarra Ranges C43 (PSA) [2008] PPV 20, published on 22 February 2008 (emphasis added):
… While some [of] the individual buildings could potentially be contributory if they were located in a relatively intact heritage precinct, the dwellings themselves do not form a legible heritage precinct and are not readily legible as a group or differentiated in terms of period, style, materials or use from other houses on adjoining or neighbouring land.
- Likewise, Senior Sessional Member Adderley in D'Orazio Enterprises Pty Ltd and City of Stirling [2013] WASAT 152 at [124], emphasis added:
… The Tribunal also notes that the configuration of buildings on the land renders the small eight bay carpark in front of the proposed shop poorly visible and poorly legible as an accessible carpark when viewed by approaching south bound traffic on Wanneroo Road. This subtracts from its efficiency and convenience as a customer carpark.
It is acknowledged that vehicle access as proposed from Holland Street does provide for legible access. However, that is not to say that legible access would not be provided if the vehicle access [was to be] from Gaynor Lane. If a double garage was provided for resident vehicles to Gaynor Lane then legible access would still be possible for visitors who would park on the street.
57 Mr Laybutt conceded that access 'via Gaynor Lane is considered to be slightly less legible for unfamiliar visitors[;] however, visitors are likely to park on Holland Street as they do currently'.
Pedestrian safety
58 Whilst basically deferring to the traffic experts on this matter, Ms Butterworth noted that:
The application does not provide any detail in regard to any proposed front fence. The proposal includes a double garage whereby vehicles are required to reverse over the pedestrian path to Holland Street … I note that with vehicle access from Holland Street, this requires vehicles to reverse over the pedestrian path. In my view, pedestrians are less likely to use Gaynor Lane as compared to Holland Street, primarily due to limited surveillance, therefore use of Gaynor Lane may result in greater pedestrian safety along Holland Street. Notwithstanding, this could be negligible [impact;] this is a matter for the traffic experts.
59 Mr Laybutt noted that with respect to Gaynor Lane access (emphasis added):
[T]here is essentially no conflict between pedestrians and vehicles entering/exiting the property onto Gaynor Lane. However, vehicle access via Gaynor Lane involves some level of risk at the intersection of Gaynor Lane and Grantham Street. In particular, drivers exiting Gaynor Lane onto Grantham Street have their visibility of pedestrians restricted by the lack of a truncation on the northwestern corner. To reduce the level of risk at this location, a speed hump has been installed to slow traffic to walking pace at the conflict point, and yellow hatched markings have been installed to warn pedestrians of the conflict point. It is possible to remove this risk completely by converting Gaynor Lane to oneway northbound operation; or reduce it significantly by [provision of] a 3 x 3 [metre] truncation on the northwestern corner [with Grantham Street].
I am of the view that the existing situation has an inherent low level of risk which is not unusual for suburban environments, however if this risk is considered unacceptable, then either of the abovementioned treatments would sufficiently mitigate these risks.
Minimal crossovers
60 As to the aim of ensuring 'minimal crossovers' in respect of the proposed development, Ms Butterworth submitted (emphasis added):
As access to Gaynor Lane is available, this is the preferred location of vehicle access. If all resident parking was accessed from Gaynor Lane then this would result in the crossover to the site being removed with no crossover to the site.This is the option that would achieve the design principle of minimal crossovers. Whilst the proposal does not increase the number of crossovers, the existing crossover is [3.5 metres] in width and the proposed new crossover is 4.5 [metres] in width, therefore increasing the crossover by 28%. Increasing a crossover in size by 28% does not in my view provide minimal crossovers.
High quality landscaping features
61 On the design principles' requirement of 'high quality landscaping', Ms Butterworth submitted as follows (emphasis added):
The [applicant's] plans … do not include a landscape plan[;] the site plan simply colours the open space as green. Whilst it is possible to undertake high quality landscaping in the open space area available, if the vehicle access was from the rear then this would create a greater soft landscaping area in the front setback and verge to provide for high quality landscaping features.
[The Streetscape Policy] in regard vehicle access provides consideration of the location of street trees. [The Streetscape Policy] includes this relevant section which states:
The location of parking and their associated driveways and crossovers must be designed so as not to interfere with street trees, including their root system and canopies. Crossovers must be a minimum of 1.5 [metres] from an existing street tree[.]
There is an existing street tree located on the verge of the review site. The [subject land's] survey plan … identifies that the tree has a height of 5 metres. The plan the subject of this Application for Review identif[ies] the street tree as being approximated 0.8 metres from the crossover. The applicant has not provided any detail from a suitably qualified professional in regard to the proximity of the street tree to the crossover. It is of concern that the close proximity of the crossover to the street tree may result in adverse impacts on the street tree and more specifically the roots of the street tree.
As the proposal has the potential to adversely affect the street tree and as a proposal that has vehicle access to the street and not to Gaynor Lane, this reduces the space available for high quality landscaping. On this basis, the proposal is not considered to meet the design principle of high quality landscaping.
- On these various design principle issues, Mr Caddy's views in response were as follows:
• As the proposed crossover replaces the existing crossover (though on the opposite side of the lot), 'the impact on the streetscape therefore remains unchanged'.
• Further to this, 'the proposed garage and house design [have] been modified to allow the garage to be set back behind the building line to further reduce the impact on the street'.
• To 'reduce the impact of the crossover the driveway has been reduced to 4.5 metres in width'.
• The 'frontage of the development will be accompanied by sufficient landscaping features to add to the streetscape amenity'.
Streetscape
63 Mr Caddy contended that the existing streetscape 'is characterised by single residential dwellings with double garages or carports gaining access from Holland Street'. He concluded that the existing streetscape character:
… is not likely to change as numerous houses with double garages have been recently constructed. As such, there is no precedent to protect the streetscape character by restricting access to Holland Street by requiring access from the laneway at the rear[.]
64 Ms Butterworth had engaged in detailed research, which produced the following data supporting her conclusion that 'the street is not dominated by double garages':
In regard to the existing streetscape, the section of Holland Street that contains the subject property runs between Grantham Street and Scaddan Street. On Holland Street, there is a total of 48 properties between Scaddan Street and Grantham Street, that front Holland Street (excluding 82 Holland Street, which has vehicle access to Grantham Street and excluding properties north of 127 Holland Street). As a result of a site inspection undertaken [by Ms Butterworth] on 22 October 2015, of those properties, the following [may be observed]:
a) Eight … or 17% of the properties in this section of Holland Street have driveways only with no parking structures located to the front of the property.
b) Eleven … or 23% of the properties in this section of Holland Street have single or double carports forward of the building alignment.
c) Twentythree … or 48% of the properties in this section of Holland Street have single garages alongside of or behind the dwelling.
d) Six … or 12% of the properties have a double garage with access off Holland Street.
- Properly, Mr Caddy accepted this research as valid.
65 The respondent had also investigated the planning history of specific nearby properties, namely the six double garages with access from Holland Street, as follows:
a) 85 Holland Street the dwelling was granted planning approval in 2006 time when the rightofway was not sealed and this application was approve[d] prior to introduction of the [Streetscape Policy, in 2009] (which contains the access provisions). The provisions of the [RCodes, 2002 iteration] only required [rightofway] access where the [rightofway] was constructed. As the [rightofway] was not constructed, approval was granted for access to Holland Street.
b) 95 Holland Street [] [p]lanning approval was granted in March 2014. As the [rightofway] was unconstructed at that time access to the [rightofway] was not required.
c) 120 Holland Street - planning approval [was] granted for extensions and [a] garage addition in 2009. As the [rightofway] was not constructed, approval was granted for access to Holland Street for a double garage. [The respondent's Streetscape Policy] (which contains the access provisions) was adopted also in October 2009 but [as noted above] the vehicle access provisions were not adopted until 2014.
d) 122 Holland Street planning approval granted for extensions to the dwelling and a garage addition in January 2009. As the [rightofway] was not constructed at that time, approval was granted for access to Holland Street for a double garage. [The respondent's Streetscape Policy] (which contains the access provisions) was adopted after this approval (October 2009) and the vehicle access provisions were not adopted until 2014.
e) 126 Holland Street planning approval [was] granted in June 2008. The provisions of the [R Codes, 2002 iteration] only required [rightofway] access where the [rightofway] was constructed. As the [rightofway] was not constructed at that time, approval was granted for access to Holland Street. [The respondent's Streetscape Policy] (which contains the access provisions) was adopted after this approval (October 2009) and the vehicle access provisions were not adopted until 2014.
f) 130 Holland Street planning approval [was] granted in January 2010. The [rightofway] was not sealed at that time. The provisions of the RCodes provide[d] deemedtocomply provisions that require[d] access where the rightofway [was] adequately paved and drained. As the [rightofway] was not [then] sealed access to Holland Street was permitted.
66 Ms Butterworth submitted that (emphasis added):
All of the other examples in Holland Street of vehicle access being permitted to Holland Street, rather than the abutting Lane, were all approved prior to the paving and draining of the adjacent laneways and prior to the introduction of the revised access provisions in September 2014.
67 I turn to consideration of the planners' joint oral evidence, which also revisits the question of streetscape.
68 Ms Butterworth conceded that the proposed outcome (in effect, a mandated use of the rear rightofway) was not perfect ('not the world's most ideal solution') but that the traffic evidence (see below) suggested that the situation was relatively safe, with a low crash history with respect to incidents involving the rightofway. Ms Butterworth also conceded that the Tribunal could not impose further oradditional safety solutions upon the respondent (for example, the erection of mirrors in the laneway to improve drivers' vision lines, particularly upon exit).
69 Mr Caddy came to a different interpretation of the traffic evidence; resolution of these differences of opinion is attempted by the Tribunal, below.
70 Mr Caddy contended that the central problem in the review is that 1920s and 1930s lanes, originally designed for 'night cart' use, were, in effect, being 'retrofitted' as access corridors, fitted onto a 5 metre lane with approximately 4 metres available, having regard to pavement/kerbing use. He noted that any attempt, say, to make the lanes 'one way' access routes, might involve lengthy car journeys in a loop of up to 600 metres.
71 Ms Butterworth contended that policymakers must be taken to know of all of these background matters, and that they had, in effect, reached reasonable judgments balancing out the relevant factors, judgments that were reflected in sound, published policy.
72 On matters in relation to streetscape, I set out the following exchanges between the experts that are instructive on the differences between the parties:
WITNESS, CADDY: Well, [the streetscape is characterised by the houses being] single residential dwellings. [The streetscape] is characterised by the fact that they are, in the main, … 1930stype bungalows. There are some new houses which generally, apart from one, appear to be two storey houses. What did surprise me this morning [on the site visit with the Tribunal] were the number of double carports that were sitting within the front setback of a lot of those original houses. They do dominate the streetscape and for that reason … [the Streetscape Policy] has been put in place, but with respect to this particular development [on the subject land], we've got the [proposed] garage sitting a metre behind the six-metre front setback. So, in effect, it's not going to dominate the streetscape …
WITNESS, BUTTERWORTH: … I was just wanting to clarify that statement, given the findings of my report, and [whether] you still consider that [the streetscape is] dominated with double garages and carports, given it's 35 per cent? [See Ms Butterworth's evidence, set out above, to the effect that 'the street is not dominated double garages'.]
WITNESS, CADDY: Well, I'm happy to say single residential dwellings and double garages and carports. I still think that it's a fairly high percentage… when you consider that 96 per cent of the 50 properties, in other words, 48 per cent of the 50 properties in that section of the street … [has] a crossover to Holland Street.
(T:73; 76 & 77; 02.02.2016)
73 Ms Butterworth reiterated her point that the respondent has 'only recently constructed the laneway and therefore, there's a reason why [so many properties] have to have that access, because those laneways weren't constructed [until 2012 or later]'.
Traffic and road safety evidence
74 As already mentioned, the respondent engaged Mr Laybutt who is a senior transport planner and senior road safety auditor for Cardno Pty Ltd (Cardno). He has had 10 years of experience in such work and also holds a degree in planning.
75 The applicant originally engaged Mr Kleyweg (the principal of Mr Kleyweg's firm 'KCTT') to provide traffic safety advice. KCTT has speciality expertise in traffic and transport engineering. Mr Kleyweg is similarly qualified to Mr Laybutt, but has had 22 years of experience in the field. Mr Kleyweg was unable to give evidence at the hearing, but Mr Kleyweg's written opinions were adopted by his colleague from KCTT, Mr Olsen, who gave evidence at the hearing. Mr Olsen is an experienced civil engineer working for KCTT. For the purposes of the review, it was agreed that Mr Kleyweg's views and Mr Olsen's views are to be taken as the one expression of opinion.
76 In their original joint conferral, Mr Laybutt and Mr Kleyweg had previously agreed on the following points, referred to above:
(i) The sight distance for the right turn movement [exiting] from Gaynor Lane into Grantham Street does not meet the Austroads recommended minimum Safe Intersection Sight Distance (SISD) for the speed environment.
(ii) The presence of parked vehicles on the northern side of Grantham Street, east of Gaynor Lane, obscures the sight distance for the right turn movement from Gaynor Lane into Grantham Street. Removing these parking space(s) would improve the sight distance for this movement.
(iii) The left turn movement from Gaynor Lane into Grantham Street has [a] reasonable sight distance available, once the vehicle has passed the property boundary.
(iv) The posted speed limit on Grantham Street [presumably 60 kms per hour] increases the SISD requirements, and therefore the risks, for vehicles entering Grantham Street compared to a lower posted speed limit.
(v) Drivers exiting Gaynor Lane have almost zero sight distance of pedestrians until the vehicle is already on the footpath. The resulting risk of collision between a vehicle and a pedestrian is heightened by the proximity of Wembley Public School and the small retail/commercial precinct [adjacent to the Gaynor Lane exit].
(vi) The current laneway width does not conform to [the WAPC's 'operational policy' Liveable Neighbourhoods2007 (2009 ed)]'s recommended laneway widths.
(vii) Converting Gaynor Lane to oneway northbound operation would alleviate the SISD, pedestrian sight distance and width issues noted in points (i) to (vi).
(viii) The existing laneway width is suitable for oneway operation.
(ix) If Gaynor Lane [were to be] retained as [a] twoway operation, providing a [2 metre by 2 metre] truncation on the north western corner of the intersection (Lot 1960 No 82 Holland Street) is likely to improve safety and pedestrian sight distance for drivers exiting Gaynor Lane onto Grantham Street, however [the construction of this] truncation is not likely to occur until such time as the subject land is redeveloped.
- Despite these shared views, the essential differences between the experts are that Mr Olsen and Mr Kleyweg do not accept Mr Laybutt's overall views, which were as follows:
These risks [of restricted visibility and a laneway width, which was conceded to be 'narrower than desirable'] are not unusual for suburban intersections and roadways and the presence of these risks encourages drivers, pedestrians and cyclists to travel with greater care. These risks are present regardless of whether this development has access via Gaynor Lane or Holland Street as other properties currently have, and will continue to have, access via Gaynor Lane.
The [respondent] can act to mitigate and/or eliminate these risks by either [providing for a truncation or the conversion of Gaynor Lane 'to oneway northbound operation'].
Similarly, the applicants can act to eliminate their exposure to these risks by only using Gaynor Lane in a northbound direction.
Neither did Mr Olsen and Mr Kleyweb accept Mr Laybutt's conclusions, which were as follows:
[It] is my opinion that the laneway to the rear is appropriate and acceptably safe to be used as the main access for the site … [It] is my firm opinion that access to/from the proposed development at 94 Holland Street can be made via Gaynor Lane with an acceptable level of safety. Further, it is my firm opinion that permitting this development to have access via Holland Street rather than Gaynor Lane will not reduce the risks which are [currently] present at the Grantham Street/Gaynor Lane intersection.
(a) The proximity of the footpath to Gaynor Lane is a safety issue due to the lack of a truncation at the western side of Gaynor Lane.
(b) Gaynor Lane is an excessive length laneway based on current Liveable Neighbourhoods [s]tandards. The topography in Gaynor Lane is also not suited to the low vehicular speeds that should be expected in a laneway. It is highly likely that due to the length of this laneway and the high rate of change of vertical geometry, that excessive vehicular speed will be an issue with a major increase in vehicular volumes on this lane. I believe this increases the risk of incidents in this laneway, particularly given the lack of sight distance available at the intersection of Gaynor Lane to pedestrians from the west.
(c) The width of Gaynor Lane is not suitable for twoway traffic and is a significant safety risk with increased traffic and pedestrian interface issues due to limited sight distances[.]
(d) Further to the above points, State Planning Policies suggest the restriction of multiple access/egress points to roads of regional importance[.]
…
(g) It is my recommendation that the use of this laneway should be restricted as opposed to being expanded and that access/egress in this location is better served using Holland Street.
78 Mr Kleyweg and Mr Olson also disagreed with Mr Laybutt on the following key matter, in relation to the 'mountable' kerbing in the laneway. The intent of any kerbing, they said, was 'to form a physical and psychological barrier that discourages drivers from leaving the road'. As to Mr Laybutt's views that, as the laneway kerbing was 'mountable', it therefore increased the 'operational width of the carriageway to 4.63 [metres]', Mr Kleyweg preferred the general views of Main Roads WA, which were as follows:
Kerbed roads have a significant effect on driver behaviour. Kerbing affects the distance that drivers align their vehicles from the edge of a road and acts as a physical and psychological barrier that discourages them from leaving the road surface. Generally lateral placement of vehicles varies with kerb height and steepness as well as the location of other obstructions outside the kerbline. Kerbing improves delineation of road edges and contributes to the appearance and safety of the road.
79 Consequently, both Mr Kleyweg and Mr Olsen disagreed with Mr Laybutt's views that the 'operational width' of this laneway was 4.63 metres. They maintained that the existing laneway was 'not suitable for twoway traffic'.
80 There were other disagreements between the experts as to what may be generally summarised as the regulation standards, interrelationship and roles of Main Roads WA and the respondent (including informed speculation on relevant traffic flows on Grantham Street, a 'regional distributor of traffic'), and the rate of use and growth of use of Gaynor Lane.
81 In crossexamination, it became clear and, so far as is relevant the planners agreed, that:
• the Liveable Neighbourhoods policy had more application to greenfield sites than to an established suburb, such as Wembley;
• Grantham Street was more likely a local, rather than a regional, distributor road;
• The number of vehicle movements per day in Gaynor Lane would be, at the moment, less than 100. However, the experts could not agree on the assumptions or predictions for increased vehicle use over time.
82 Socalled 'crash data' had been produced by Mr Laybutt's firm, Cardno, in June 2015 from official statistics collected by Main Roads WA, which indicated that for Holland Street and nearby intersections on Grantham Street, 'all [are] shown to have [a] relatively low, or in the case of Gaynor Lane, apparently zero, reported crash rate'. Mr Olsen agreed with those conclusions but thought that the number of crashes would increase over time as use of the laneway intensified.
83 Mr Laybutt was asked to respond to the applicant's characterisation of the problems that allegedly arose from the 'retrofitting' of narrow, rear access lanes designed for a different era. The relevant exchange was as follows (emphasis added):
McNAB MR: … Mr Laybutt, do you want to briefly comment on that, the interrelationship between generalised planning instruments and these traffic problems from a 1920s lane, albeit one looking [so] magnificently upgraded?
WITNESS, LAYBUTT: Yes. Obviously there is an extent you know, an amount of generalisation applied through these [instruments], so … they can't deal with every specific laneway configuration that you will achieve, but generally the principle is sound, and, you know, both on traffic grounds and on planning grounds, in my opinion … And within that, below that, once you accept the principle, you then apply the principles of traffic engineering and traffic management to improve the … level of safety as much as possible.
(T:100 & 101; 02.02.2016)
84 In crossexamination, Mr Caddy put to Mr Laybutt specific scenarios with respect to vehicles of different sizes and makes passing one another in the laneway. He conceded the point as follows:
WITNESS, LAYBUTT: I believe that it's safe at low speed, and obviously the passing of [a] very large vehicle is an outlier [problem]. So for an average size vehicle, passing another average size vehicle, or a mix of larger and smaller [vehicles], it generally functions, at low speed with care …The very low volumes in the laneway means that it is going to be an uncommon, or [a] nonregular event to have to pass another vehicle, let alone two Land Cruisers passing. It's not a typical suburban street with … 3000 vehicles a day. We're talking [of] a laneway that carries well less than 100 [vehicles per day] at the moment, and in the future might be double that … in the very uncommon event that two Land Cruisers meet, they may prefer to reverse out.
(T:113 & 115; 02.02.2016)
85 Finally, both experts agreed with Ms Butterworth that 'when [a local government] approves a garage [with an] access, they [may] require it to be set back off the laneway' and that requirement 'may well provide an opportunity for vehicles [to satisfactorily pass one another] in the future'.
Further evidence
86 After final addresses, the parties were invited to address the Tribunal on three further matters that had arisen during the hearing, and which required further inquiries and submissions to be made. These matters were:
i) further details relating to the relevant planning history of Nos 97 and 102 Holland Street (in the context of whether the respondent had been consistent in its application of the Streetscape Policy);
ii) details of the transitional provisions removed from the Town's Streetscape Policy (since 2009); and
iii) the effect, if any, of the WAPC's 1999 Planning Bulletin 33 (PB 33) position on rightofway truncations.
New carport at No 97 Holland Street and new additions at No 102 Holland Street
87 It is common ground that on 15 February 2015, planning approval under delegated authority was granted 'for a proposed carport in the front setback of the property at 97 Holland Street, Wembley'. The conditions imposed on the approval were that:
a) [t]he carport [is] to remain open on all sides; and
b) [t]he crossover [is] to be no wider than 4.5 [metres] (including splays).
88 Ms Butterworth noted that (emphasis added):
The proposal involved the continued use of the garage [and] the rear of the site (abutting the [rightofway]) presently contains a timber pergola and galvanised shed. In addition, there is an 8 [metre] tall tree in the rear yard, close to the rightofway. In the context of the approval for 97 Holland Street, the [r]espondent did not require rear access as:
a) The plans show the continued (legal) access from the existing garage through the proposed carport from Holland Street.
b) The existing structures and tree within the rear yard space constrained the site such that would not be possible to fit a double width garage to the laneway.
89 Mr Caddy noted an apparent incongruity between the Streetscape Policy and this approval, contending that:
The respondent's [approval] infers that in the event that an existing garage is proposed to be retained then there is a right to maintain continued legal access from the street frontage of the land. In the case where an existing garage is retained, then it is inferred that a landowner is able to build a double carport in front of the garage despite the [Streetscape Policy] which expressly states that 'garages, carports and or parking spaces must be located off a rightofway where an adequately formed right of way is available'.
90 Ms Butterworth submitted that, in effect, special circumstances existed which justified approval, despite an apparent contradiction with the express wording of the Streetscape Policy. Ms Butterworth contended that (emphasis added):
[The respondent] recognises that many of the existing dwellings (such as those at 97 and 102 Holland Street) are not designed to easily accommodate alternative vehicle access arrangements to the rear of the dwelling. When a property is fully redeveloped [such as is the case here], this creates an opportunity whereby the dwelling can be designed with rooms suitably located with vehicle access from the rear.
91 Again, it is common ground that on 31 March 2015, planning approval was granted for certain 'proposed additions to the existing single dwelling at 102 Holland Street, including conversion of part of the existing garage to a workshop, demolition of part of the existing garage and construction of a carport in the front setback of the property'. The conditions imposed on the approval were as follows:
a) [t]he carport [is] to remain open on all sides. No solid door is to be installed;
b) [t]he tree located on the verge directly adjacent to the subject site is to be retained; and
c) [t]he crossover width is not to exceed 4.5 metres (including splays).
92 Ms Butterworth submitted as follows:
In the context of the approval for 102 Holland Street, the [r]espondent did not require rear access as the plans identified the continued (legal) access from what was the existing garage to the partial conversion of that garage to a carport. Accordingly, as the application proposed to continue to use the existing access to Holland Street to the existing dwelling for a newly constructed carport, rear access was not required.
93 Mr Caddy once again pointed to an apparent contradiction with the express wording of the Streetscape Policy. He contended that (emphasis added):
… In the case of 102 Holland Street, it was not even proposed to retain the existing garage [and] there is no functioning garage that requires continued legal access[,] however the owners were still permitted to build a double carport at the front of the property when this is not allowed under the deemedtocomply provisions of the [Streetscape Policy]. This would appear to illustrate that there is basically no restriction on new double carports being constructed which ignores all the key objectives of the respondent's [Streetscape Policy].
The applicants [in the present review] submit that their request to build a new double garage and continue to use an existing (relocated) legal access from the main street is no different to the situations at 97 and 102 Holland Street. The applicant contends that their proposed double garage which is set back behind the main building line in accordance with the [Streetscape Policy] is in fact far less dominant than the double carports that have been approved at 97 and 102 Holland Street.
94 With respect to Mr Caddy, these two cases are examples of the flexible application of planning policy which the law requires (and which principle he seeks to apply in this case). The distinction between achieving the Streetscape Policy's main objectives reasonably and over time, development by development, noting, in effect, that they can be best achieved at the time of major redevelopment is, I think, sound administrative and planning practice. In other words, the apparently strict letter of the policy (if that is what it is) has been displaced by reason of the recognition or application of a cogent, sitespecific reason: see the discussion below on the flexible and fluid application of planning policy.
95 However, even if the respondent's Streetscape Policy had been incorrectly applied or not observed by the respondent, it would not necessarily justify a departure from the planning framework. As the Tribunal has previously observed in Forte v Town of Claremont [2013] WASAT 35; (2013) 84 SR (WA) 89, at [49]:
Whether or not the respondent has approved other development over the years 'in error' we are not bound to follow that lead, although we acknowledge that such results must influence (but not control) judgments to be made as to the surrounding character of the immediate neighbourhood. However, whether any proposed development 'makes the situation worse' is often relevant to the exercise of discretion in planning matters (cf, for example, Piva and Stonnington City Council [2009] VCAT 1089 at [36]; Kominos and Boroondara City Council [2011] VCAT 982 at [35]). And, in Hawkins and City of Joondalup [2008] WASAT 64 the Tribunal noted, at [66] [67]:
... [A]s the Tribunal said in Hopkin v Shire of SerpentineJarrahdale (2006) 46 SR (WA) 84 (at 91):
Even if examples could be provided of departure by the respondent Shire from its policies such cases would not justify a further departure. In Smart and Barossa Council [1999] SAERDC 29 (cited with approval in this Tribunal in Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232, at [40] and Sweeney and Shire of Busselton [2006] WASAT 277 at [39]) the court said, at [9]:
Trite as it may be to say so, ' two wrongs do not make a right', or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions.
Transitional provisions 'removed' from the Town's Streetscape Policy
96 The question arose in the review as to the effect, if any, of the apparent removal in 2014 of what appeared to be transitional provisions in the Streetscape Policy.
97 Ms Butterworth submitted the following detailed explanation (emphasis added):
At the completion of advertising [of the draft Streetscape Policy], the [respondent] again considered the policy at its meeting of 26 November 2013[.]
The officer report under the heading of 'Crossovers' detail[ed] the proposal to require access from a rightofway where available. The officer report goes on to say, in regard to crossovers and access:
'It is considered necessary to defer amendments to the Streetscape Policy on this subject until a more detailed review is completed.'
Therefore the section of the policy on crossovers and access was taken out of the [draft] policy that was for endorsement. The [respondent] at its meeting of 26 November 2013 then resolved to adopt the revised Streetscape [P]olicy but also considered it appropriate that certain sections of the policy be delayed in their introduction, providing a time frame for transition between the updated version of the policy.
Specifically the Council resolved that certain sections of the policy not come into effect until 1 January 2014 relating to:
a) street setbacks;
b) minor incursions;
c) garages; and
d) street surveillance.
…
The Streetscape [P]olicy was then later revised and was considered by [the respondent], and [the respondent], [at] its meeting of 24 June 2014 resolved to adopt the revised policy for the purposes of advertising. This version of the policy included a revised section on access and crossovers, which identified that for the suburbs of Wembley and West Leederville['s] garages, carports and/or parking spaces, must be located off a rightofway where an adequately formed rightofway is available for use of the relevant lot. [The respondent], at [its] meeting of 26 August 2014[,] [resolved to implement the Streetscape Policy].
Subsequent to the WAPC endorsing the access provisions, an item was presented to the Council meeting of 23 September 2014 that the policy be endorsed[.]
98 Mr Caddy, with respect, correctly observes from this history that:
… In terms of any transitional provisions, these are extremely hard to identify as the provisions of the [Streetscape Policy] relating to access from rightsofway were continually under review and not finally endorsed until 23 September 2014 … Transition then was occurring from 26 November 2013 until 23 September 2014.
99 It is not unknown for planning instruments to provide for transitional arrangements in respect of a significant change in policy position. Hence, the R Codes, in their 2002 iteration, contained certain transitional arrangements with respect to subdivision, described in the WAPC Planning Bulletin 89 at p 4, as follows (emphasis added):
Revised transition provisions for grouped dwellings in areas coded R12.5, R17.5, R60 and R20
The 2002 codes included transition periods for areas coded R12.5, R17.5 and R60 and allowed a 450 m2 average site area concession for grouped developments on lots between 900 m2 and 1000 m2 in areas coded R20.
The advertised codes and the 2008 codes delete the arrangements for the R12.5, R17.5 and R60 coded areas because the transition period has expired.
For the R20 areas, the advertised codes limited the transition period to 31 October 2008. Following submissions, this has been extended to 30 April 2009 (cl 6.1.3 A3iv). This extension has taken account of delays in the Water Corporation's sewerage infill program. The WAPC will issue at least two public notices approximately six months and three months before the cutoff date advising of the expiration of the transitional concession period.
100 In planning law, as is well-established, a development or subdivision application is to be determined on the basis of the law and the planning framework as it stands at the time of the determination, whether by an original decisionmaker or on review by a tribunal: see, Miller v City of Stirling [2007] WASAT 247; (2007) 56 SR (WA) 128, at [35]. In short, in planning law there are no accrued rights.
101 By October 2012, the rightofway was sealed, upgraded, and ready for use. The subject land was purchased by the applicant not long after, in 2013, '[w]ith a view to building in 2015'. In August 2014, the applicant sought demolition of the existing single storey dwelling on the subject land. The WAPC approved the current version of the Streetscape Policy by way of correspondence dated 9 September 2014 and the respondent finally endorsed the Streetscape Policy later that month.
102 Mr Caddy put his client's position thus:
The applicants make the point … that their initial plans were submitted to the respondent on [18] August 2014. The [Streetscape Policy] stating access off the [rightofway] was required[,] was adopted for the purpose of referring the Policy to the WAPC for endorsement [eight] days later on the 26 August 2014 and was then finally endorsed by the [respondent] on 23 September 2014.
- However, Ms Butterworth demonstrates that, having regard to the history set out earlier in these reasons, the respondent's position has always been:
… that it has always sought to apply the provisions of the RCodes (since 2002) and its policy provisions that when the rightofway is paved and drained that it shall require all new vehicle access from the right of way[.]
The WAPC's Planning Bulletin 33 position on rightofway truncations
104 The final matter upon which further evidence and submissions were received relates to PB 33 which includes suggested standards on rightofway truncations and related matters. Ms Butterworth contended that (emphasis added):
[PB 33] suggests two alternative solutions in regard to the intersection treatment of a rightofway and a public street. [First,] it suggests a solution of reducing the width of the pavement at the intersection or secondly to require a truncation of [2 x 2 metres] ([a] 2.8 [metre] truncation). Therefore a truncation is not the only method of addressing issues such as sightlines. Notwithstanding[,] this is only a guideline.
105 So far as the northern exit from Gaynor Lane is concerned (that is, at the end furthest from Grantham Road), Ms Butterworth submitted:
In the context of this matter, for the intersection with Scaddan Street, given that there is no pedestrian path abutting the intersection of the Gaynor Lane pavement and the pavement of Scaddan Street, the guideline [PB 33] suggests that the truncation is not required. The [r]espondent supports the position that where there is no abutting pedestrian path no truncation is required.
106 On the advisability of having an intersection treatment of 2 x 2 metres as regards the central issue of Grantham Street, Ms Butterworth submitted (emphasis added):
At the time of future development and/or subdivision of the properties that abut Grantham Street and Gaynor Lane, the [r]espondent, would seek a [2 x 2 metres] truncation from those properties[;] however, the time frame for development/redevelopment of these properties is not known.
Whilst [PB 33] does provide some suggestions in regard to truncations, it is only a guidance statement and therefore not enforceable.
Accordingly, whilst the [r]espondent may, at some time in the future seek to create a truncation where Gaynor Lane intersects with Grantham Street, [PB 33] does not require a truncation. Accordingly, the respondent contends that [PB 33] has little weight and does not require the upfront provision of a truncation to a rightofway.
107 Mr Caddy sought to bolster his road safety case by making the following observations based upon PB 33's recommended standards:
[T]he two options suggested [in PB 33] to create safe visibility where the rightofway meets Grantham Street are impractical in that there are no plans to subdivide or develop the lots adjacent to the intersection of the rightofway with Grantham Street nor is it practical to narrow the pavement of what is already acknowledged as a narrow rightofway.
The applicant submits that the existing rightofway like all the others on Grantham Street does not have adequate sight lines to the footpath. Both the traffic experts have testified that a car exiting Gaynor Lane cannot see pedestrians travelling eastbound until the car bonnet has crossed the footpath. Both traffic experts have conceded that for a vehicle exiting the lane to avoid a collision with a pedestrian or cyclist, it is incumbent upon the pedestrian or cyclist paying attention. Given that Grantham Street is a major thoroughfare for young pedestrians and cyclists, the applicant strongly disagrees with the respondent's contention … that [PB 33] has 'little weight'. If anything this guideline should be given more weight than would usually be the case.
lt is widely accepted [by expert traffic researchers] that young pedestrians are more vulnerable to accidents on the road[.]
By discounting [PB 33]'s recommendation for a [2 x 2 metres] truncation, the respondent is essentially forcing [c]ar drivers into a situation where they are relying on a high risk group of pedestrians to behave in a manner [which] many of them are not capable due to their age and lack of experience.
[PB 33] also talks about widths of [rightofways] … It states the following:
Rightsofway were not designed to carry frequent vehicle traffic. The narrow width of some rightsofway coupled with increased traffic could lead to property damage and accidents due to the insufficient space for the manouvering of vehicles around bends and in and out of properties. The narrow width of many rightsofway can leave insufficient space for passing either oncoming or parked vehicles and is potentially unsafe for pedestrians. Before comprehensive development occurs adjacent to [rightsofway] there may be a need for widening.
This statement could not be truer of Gaynor Lane. At 4.03 [metres] kerb to kerb it is not safe for two large vehicles to pass. Forced use of Gaynor Lane over Holland [S]treet will lead to increased incidents of cars having to reverse out of the lane way in order to give way to other exiting cars or to get around parked cars and trucks that may be blocking the lane.
This combined with the lack of truncation at the end of the right of way creates an extremely unsafe environment for younger pedestrians and cyclists on Grantham Street[.]
108 Finally, Mr Caddy drew attention to another recommended standard found within PB 33, namely the recommended lengths of rightsofway:
The policy [PB 33] also talks about lengths of [rightsofway] … It states that where [rightsofway] over 200 [metres] in length they are considered 'excessive' and special treatment may be required to 'restrict traffic volumes and speeds'. Gaynor Lane is approximately 400 [metres] in length with a level change of 16 [metres] from end to end. Apart from one speed hump at the end of the laneway [at the Grantham Street end] there are no special treatments on Gaynor Lane to restrict traffic speed, and the [respondent's] policy objective seems to be to increase traffic volume on the [rightofway] rather than reduce it.
109 The material contained in PB 33 broadly reflects the concerns and observations already made by the parties' respective traffic experts. I will return to these matters below, but I should note here that I accept Ms Butterworth's submission that PB 33 is only policy; that is, '[it] is only a guidance statement and therefore not [directly] enforceable'.
Parties' final addresses
110 Ms Butterworth cited Radford and City of Vincent [2014] WASAT 67 in support of her case. There, the Tribunal was considering a Residential Design Policy, the provisions of which included the following considerations (emphasis added):
Garages and carports are not to visually dominate the site or the streetscape, and not to detract from the dominant elements of dwellings within the streetscape context.
Garages and carports are to be located behind the street setback line and at the side of the dwelling where space exists and accessed from an abutting right of way where a right of way exists.
111 The Tribunal (constituted by Senior Sessional Member, as he then was, Mr P de Villiers) refused planning approval for a double carport in the front setback of the lot on the primary street, concluding as follows, at [58] and [62]:
Any decision on whether to exercise discretion in the matter under review involves weighing the impact of the proposed carport on the character of the streetscape against the intent of the Residential Design Policy to encourage residential development that harmonises with the existing streetscape and complements the character of the locality, and, more particularly, minimises the impact of vehicles on the amenity of the streetscape[.]
[Here,] the proposed carport will add a further disruptive element to a reasonably consistent streetscape and would, in the Tribunal's view, not meet the relevant provisions of either the Residential Design Policy or the [R Codes].
112 In Crisp and Town of Cambridge [2014] WASAT 71, Member Jordan refused planning approval for certain double garages. His conclusion, cited by Ms Butterworth, so far as is relevant, was as follows (at [45]):
[T]he 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.
- These two decisions represent what might be described as planning orthodoxy, namely that relevant planning policy has presumptive effect, and is not to be displaced except for a cogent planning reason. In neither case did such a cogent reason emerge.
113 In Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 (Atlas Point) (aff'd: [2014] WASC 26, and cited with approval in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [180]), the Tribunal, at [88], spoke of 'the well recognised presumptive authority of soundly based, transparent and directly applicable planning policies aimed at a wider public interest and reflected in the planning framework'.
114 In Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433, Barker J said at [24]:
If [a planning authority] has adopted [a relevant policy], and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the [planning authority] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
115 Indeed, as de Jersey CJ once famously observed, '… good town planning, basic principles aside, depends on a large element of fluidity and flexibility': Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210; (2013) 195 LGERA 317, at [26].
116 Ms Butterworth submitted:
In regard to reduced impact of access points on the streetscape [in accordance with the planning framework], there is an existing single crossover and an existing single garage on [the subject land] at the moment. The applicant proposes a double garage with a crossover of four and a half metres. There is a paved and drained rightofway at the rear that is available for use and we say that the proposal does not provide reduced impacts of access points to the streetscape. It will add a double garage, the very feature that [the respondent] is trying to avoid.
And, as can be seen by the survey of Holland Street provided in my witness statement, the street is not dominated by double garages. In fact, there are only six out of 48 dwellings with double garages, all of which were approved either prior to the formal adoption of the policy through the WAPC or prior to the paving and draining of the rightofway behind the dwelling.
117 Mr Caddy sought to emphasise the inherent flexibility in the application of design principles to the proposed development where traffic safety and access were recognised. Here, Mr Caddy contended that 'access from Holland Street is more acceptable from a safety point of view than access from Gaynor Lane as it allows for appropriate safety distances and sight lines to be achieved'. He also relied upon the officers' assessment of August 2015, which is reproduced at length above.
118 On streetscape, Mr Caddy submitted as follows:
The existing streetscape character is not likely to change as numerous double garages and carports have been recently constructed. As such, there is no precedent to protect the streetscape character by restricting access to Holland Street by requiring access from the laneway at the rear. And in this regard we have referred the [T]ribunal to the photographs and maps included in the applicant's bundle [of documents] showing the [preponderance] of access from primary streets and Holland Street in particular. Further to this, the proposed garage and house design has been modified to allow the garage to be set back behind the building line to further reduce the impact on the street[.]
119 In answer to the Tribunal's questions concerning at which point one might properly 'abandon' the presumptive policy framework (which favours the respondent's position), because of, say, significant and accepted difficulties, such as traffic safety doubts, Mr Caddy, in effect, contended that it would be proper to do so if the cumulative 'impression' of these difficulties, based upon evidence, justified the same.
Concluding analysis
120 After consideration of the detailed evidence and material set out above, the Tribunal's views may be shortly stated.
121 First, there is much force in Mr Caddy's recitation of the safety and access problems (for example, safety distances, a lack of truncation, problems with sightlines and the like) resulting from the use of Gaynor Lane. These problems, which are generally acknowledged by the respondent, arise out of the 'retrofitting' of very old, rear laneways found in neighbourhoods such as Wembley, based upon, as they are, a long abandoned 'night cart' service.
122 Secondly, amongst other matters, such laneways are undoubtedly narrow and emerge 'suddenly' into main thoroughfares. Nowadays, and judged by modern planning standards, they would not be approved, at least in their present form. The applicant has provided more than sufficient evidence of those difficulties to make out a prima facie case for displacement of the Streetscape Policy in its potential application to regulating access issues on the subject land. This was the officers' position below.
123 However, such laneways exist and have the capacity, if used wisely, to advance other objectives. In the consideration of such matters, there is always a danger, to apply an aphorism, of allowing the best, or the perfect, to be treated as the enemy of the good. In other words, these complications of use, considerable as they are, might themselves be displaced when balanced against matters of not inconsiderable countervailing public importance. That might produce a relevantly 'good' and acceptable, if not perfect, result. These countervailing matters include the following:
• The efficient use of such land which is also valuable public infrastructure (cf cl 5(3)(g)(i) of TPS 1).
• The corresponding acknowledgement of the public investment by way of the upgrading of such laneways to maximise their use.
• Their potential use to drive, over time, an 'open streetscape' policy for the immediate precinct.
- That last-mentioned policy objective (open streetscapes) is longstanding (at both State and local level), adequately articulated, rational from a planning point of view, and not unreasonable in respect of either its objectives or the methods of its achievement. The Streetscape Policy meets the standard of being 'soundly based, transparent and [a] directly applicable planning [policy] aimed at a wider public interest': cf Atlas Point, above. I do not understand Mr Caddy to challenge this characterisation. Further, and importantly, the difficulties of use and access articulated by Mr Caddy must be presumed to have been known to the authors of the Streetscape Policy: cf Tooth, above.
124 I acknowledge Ms Butterworth's detailed and thorough research on both the state of the existing streetscape and, more importantly, the respondent's attempts to maintain a policy objective of a relatively open streetscape, even if that objective is to be achieved over time. I accept her opinion that what the applicant is seeking to do (adding to the streetscape a double garage) is the very feature that the respondent is trying to avoid.
125 However, critical to the final judgment that needs to be made is the acceptance or otherwise of Mr Laybutt's evidence to rebut the applicant's case on safety grounds. It will be recalled that Mr Laybutt's central evidence was that 'the existing situation has an inherent low level of risk which is not unusual for [such] suburban environments'. He fully supported the proposed use of the laneways as the respondent had, in effect, called for. However, he went on, in effect, to urge the respondent to keep the situation under review and, if necessary, to take further steps to mitigate any emergent risks.
126 I regard Mr Laybutt's position, which I have set out at length earlier in these reasons, to be credible, based upon extensive analysis and research, balanced and fair in its acknowledgement of the overall situation. With respect, I accept Mr Laybutt's position over the counter views of Mr Kleyweg and Mr Olson where there are differences of emphasis or substance between him and them.
127 In summary, there is a considerable countervailing public interest in seeing the Town's infrastructure upgraded and deployed to achieve the commendable policy objective of open streetscapes. The situation is far from ideal, but, on balance, the access situation is neither so unsafe nor so unsatisfactory as to warrant approval of the applicant's current proposal.
128 The decision of the respondent will therefore be affirmed.
Final orders
For the reasons given above, the Tribunal's orders are as follows:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [128] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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