Fanderlinden and City Of South Perth
[2007] WASAT 275
•19 OCTOBER 2007
FANDERLINDEN and CITY OF SOUTH PERTH [2007] WASAT 275
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 275 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:283/2007 | 24 SEPTEMBER 2007 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 19/10/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld | ||
| B | |||
| PDF Version |
| Parties: | SHANE FANDERLINDEN CITY OF SOUTH PERTH |
Catchwords: | Town planning Application for planning approval Grouped dwelling Front setback area Open grille security panels Focus area Detrimental affect on the streetscape character Design compatibility Carport Double garage Performance criteria Boundary wall |
Legislation: | City of South Perth Town Planning Scheme No 6, cl 4.1(3), cl 6.3(8), Sch 5 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(2) Residential Design Codes of Western Australia (2002), cl 3.2.3 |
Case References: | Nil |
Orders | 1. The application for review is upheld.,2. The decision under review is set aside. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FANDERLINDEN and CITY OF SOUTH PERTH [2007] WASAT 275 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 24 SEPTEMBER 2007 DELIVERED : 19 OCTOBER 2007 FILE NO/S : DR 283 of 2007 BETWEEN : SHANE FANDERLINDEN
- Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning Application for planning approval Grouped dwelling Front setback area - Open grille security panels - Focus area - Detrimental affect on the streetscape character - Design compatibility - Carport - Double garage Performance criteria Boundary wall
Legislation:
City of South Perth Town Planning Scheme No 6, cl 4.1(3), cl 6.3(8), Sch 5
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(2)
Residential Design Codes of Western Australia (2002), cl 3.2.3
(Page 2)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr J Devereux (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of South Perth
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the City of South Perth to refuse an application for planning approval for the conversion of a carport to a garage at Lot 3 (No 1/34) Mary Street, Como.
2 The Tribunal examined the respective positions of the parties, the appropriate legislative and policy provisions, some existing relevant developments nearby and the matter of streetscape.
3 It was concluded that the proposed garage would not have a significant effect on the streetscape character and that an approval was fair and reasonable in the circumstances of this case.
4 The application for review was upheld.
Introduction
5 The application for review, dated 20 August 2007, was lodged by Mr Shane Fanderlinden (applicant) under the provisions of s 252(2) of the Planning and Development Act 2005 (WA) against a decision of the City of South Perth (respondent) on 24 July 2007 to refuse an application for planning approval for additions/alterations to an existing grouped dwelling.
6 The proposed additions/alterations were for the conversion of a carport to a garage and the reasons for refusal were:
"(1) The proposal is in conflict with the provisions of Policy P376_T "Residential Boundary Walls", which generally requires a 6 metre minimum setback from the street alignment for boundary walls in lieu of the proposed 2.9 metre setback.
(2) The proposal is in conflict with Clause 3.2.3 A3.5 "Set Back of Garages and Carports" of the Residential Design Codes of Western Australia 2002, which requires garages to be setback 4.5 metres from the street alignment, and does not satisfy the associated Performance Criteria contained within Clause 3.2.3(P3) of the R Codes.
(Page 4)
- (3) The proposed garage width does not comply with the 5.6 metre minimum prescribed by the City of South Perth Town Planning Scheme No 6.
(4) The proposal is in conflict with Council Policy P370_T, "General Design Guidelines for Residential Development", as the siting of the garage within the front setback area is not consistent with the established streetscape character within the Mary Street focus area.
(5) Having regard to the matters identified in reasons (1)-(4) above, the proposed development conflicts with the Scheme Objectives" identified in Clause 1.6 of the City of South Perth Town Planning Scheme No 6.
(6) Having regard to the matters identified in reasons (1)-(4) above, the proposed development conflicts with the "Matters to be Considered by Council" in Clause 7.5 of the City of South Perth Town Planning Scheme No 6.
(7) The applicant be advised that the City would be willing to consider an alternative proposal which incorporated "open grille" security panels to the side and front of the existing carport in order to retain the open appearance of the existing parking structure as advocated by the City's Design Advisory Consultants (advisory architects)."
The subject land
7 The subject land can be described as Lot 3 (No 1/34) Mary Street, Como, and the grouped dwelling the subject of this review, is one of three only. The area of Lot 3 is 274 square metres.
8 The grouped dwellings are located on the east side of Mary Street which is identified as an Access Road within the City's Functional Road Hierarchy.
9 There is an adjoining single residence on the north side (Lot 2) and three adjoining grouped dwellings on the south side (Lot 405). There is a rise of one metre (approximately) from the western boundary to the eastern boundary.
10 A so-called "focus area", as described by the respondent, includes the section of the street extending from one cross intersection to the next cross intersection together with the residential properties (including the
(Page 5)
- subject land) fronting onto both sides of that section of the street. The "focus area" is characterised by grouped dwellings.
11 There is an existing double carport at the front of the property.
Legislative framework
12 The subject land is zoned "Urban" in the Metropolitan Region Scheme and "Residential" in the City of South Perth Town Planning Scheme No 6 (TPS 6).
13 Also relevant to this matter are the:
(a) Residential Design Codes of Western Australia (October2002) (Codes).
(b) Policy P370_T - (General Design Guidelines for Residential Development) (Policy P370_T).
(c) Policy P376_T - (Residential Boundary Walls) (Policy P376_T).
Respondent's position
14 The position of the respondent can be broadly summarised in the Respondent's "Statement of Issues, Facts and Contentions" dated 5 September 2007. It contends:
Issue No 1.0
1.1 The proposed garage would cause a significant detrimental effect on the streetscape character.
Issue No 2.0
2.1 There is no satisfactory evidence to demonstrate compliance with the performance criteria set out in P3 of Clause 3.2.3 "Set Back of Garages and Carports" of the Codes.
Issue No 3.0
3.1 The proposed garage does not provide adequate dimensions relating to the location of the columns when allowing the car doors to open.
3.2 There is no satisfactory evidence to demonstrate compliance with Clause 6.3(8) "Car Parking" of TPS 6.
(Page 6)
- Issue No 4.0
4.1 The proposal does not demonstrate design compatibility within the "focus area" which has an open streetscape character.
4.2 Where a lesser setback has been allowed for garages within the "focus area" they have maintained the open streetscape character.
4.3 The proposed garage would cause the property to be "closed-in" in comparison to the open streetscape.
15 The position of the applicant is contained in his "Statement of Issues, Facts and Contentions" dated 17 September 2007. He contends:
Issue No 1.0
1.1 The proposed garage will not have a detrimental effect on the streetscape character.
Issue No 2.0
2.1 There is satisfactory evidence to demonstrate compliance with the performance criteria set out in P3 of Clause 3.2.3 of the Codes.
Issue No 3.0
3.1 The garage does provide adequate dimensions relating to the location of the columns to allow the car doors to open because the respondent has used its discretion in approving the installation of "open grille" security panels to enclose the garage (in lieu of a brick enclosure)..
Issue No 4.0
4.1 The proposal demonstrates design compatibility within the "focus area".
4.2 When a lesser setback has been allowed for with a garage (and enclosed garage door) within the "focus area" the open streetscape has not been maintained. An example of this is at 22 Mary Street with "head height" brick walls.
- 4.3 The proposed garage construction will not cause the property to be "closed-in" in comparison to units 1 and 2 at 33 Mary Street directly opposite the subject land.
Planning issues
16 The principal planning issue is:
(a) Was the respondent's decision fair and reasonable in the circumstances of this case?
Assessment of proposal
Existing and proposed development
17 At the present time there is an existing double carport on the property which is set back 2.9 metres from the front boundary. It comprises:
(a) Three supporting brick pillars on the north side adjacent to the northern boundary with two intervening brick walls between the pillars. These walls are some 2.65 metres and 2.4 metres long and some 0.7 metres high.
(b) One supporting brick pillar and one supporting wall on the south side. The wall is some 1.8 metres wide and 2.2 metres high extending from floor to ceiling.
(c) An existing colorbond roof with an approximate 0.7 metre to 0.8 metre above ground gap between it and the northern boundary.
18 It is proposed to:
(a) Construct two new brick walls on top of the two existing brick walls between the pillars on the north side. This will totally enclose the north side with a wall 2.2 metres high and adjacent to the existing dividing fence with 32 Mary Street (Lot 2).
(b) Construct two new brick walls approximately 2.4 metres and 1.1 metres wide to a height of 2.2 metres between the existing brick structures on the south side. This will totally enclose the south side of the proposed garage.
(c) Extend the existing colorbond roof and gutter to the northern boundary to fully enclose the roof.
(Page 8)
- (d) Install a "tilt-a-door" garage door.
Legislative and policy provisions
Town Planning Scheme No 6
19 Under cl 4.1(3) the development of land for residential purposes is required to conform to the provisions of the Codes.
20 Clause 6.3(8) prescribes in relation to car parking that:
"car parking bays and associated accessways shall not be of lesser dimensions than those prescribed in Schedule 5 measured clear of the face of any column or pier and shall be increased by 0.3 metres where a wall, column, pier or fence abuts a side of a car parking bay."
21 Schedule 5 "Minimum Dimensions of Car Parking Bays and Accessways" requires the width of a parking bay to be 2.5 metres.
22 Based on the provisions of cl 6.3(8) and Sch 5 the width of the garage should be 5.6 metres. It is proposed at 5.4 metres.
Residential Design Codes
23 Under cl 3.2.3 "Set Back of Garages and Carports" the performance criteria state:
"P3 The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street and vice versa."
24 Under the acceptable development provisions it states under A3.5:
"A3.5 Garages set back 4.5 metres from the primary street. This may be reduced where the garage adjoins a dwelling, provided the garage is at least 0.5 metre behind the dwelling alignment (excluding any porch, verandah or balcony) or setback [sic] 3 metres where vehicles are parked parallel to the street alignment."
25 The proposed garage is set back 2.9 metres from the front property boundary and would not meet the 4.5 metres specified under the acceptable development provisions of the Codes.
(Page 9)
Policy P370_T "General Design Guidelines for Residential Development"
26 Under cl 3 "Streetscape Character" it advises:
"All residential development shall be designed in a manner that will preserve or enhance desired streetscape character. In order to satisfy the Council in this respect, the drawings of any proposed development are required to demonstrate design compatibility between the proposed building and the existing buildings within the focus area. In assessing the design compatibility of a proposed development, the Council will have regard to the primary and secondary contributing elements as identified in the preceding definition of the term "design compatibility".
27 Under the "Definitions" section of the policy the term "design compatibility" is defined:
"Design compatibility means the extent to which a proposed residential building is visually in harmony with neighbouring existing buildings within the focus area. Primary elements contributing to design compatibility are generally scale; colour; form or shape; and rhythm. Secondary elements include construction materials; setbacks from the street and side boundaries; the extent and nature of site landscaping visible from the street; and architectural details."
28 The policy is applicable to all forms of residential development including additions to existing single houses and there are "variations from policy" in exceptional circumstances following consultation with Council's Design Advisory Committee.
Policy 376_T "Residential Boundary Walls"
29 Under the "Policy Provisions" of the policy, it advises:
"1. Approval will not be granted for a boundary wall if such wall would adversely affect the amenity of an adjoining lot. In assessing the effect on amenity, Council will have regard to the effect any proposed wall would have on:
• the streetscape character;
- • the outlook from the front of an adjoining dwelling or its front garden, if the proposed wall is located forward of that adjoining dwelling;
• the amount of daylight being admitted to a habitable room window on an adjoining lot;
the amount of winter sunshine being admitted to an area of private open space on an adjoining lot;
the amount of glare caused by the wall due to the reflective value of its surface; and [sic]
• existing views from an adjoining building. [sic]
• outlook from habitable room windows on an adjoining lot.
- 2. Approval will not normally be granted if:
• a proposed boundary wall is located forward of a 6.0 metre setback from the street alignment or the setback distance prescribed by Clause 62 and Table No 4 of the No 5 Scheme Text unless the Executive Manager, Technical Services Division, or the Manager, City Planning, is satisfied that the proposal would not have a detrimental effect in terms of the relevant amenity factors referred to in Clause 1;
…"
31 The Policy Objective is:
"To consider the use of boundary walls where:
• it can be demonstrated that the wall(s) will not have any adverse effect on the amenity of adjoining residential properties; and
- • the wall complies with the provisions of this policy."
Other developments in the "focus area" and nearby
32 In the witness statement dated 17 September 2007 of Stephanie Anne Radosevich, a trainee town planner with the City of South Perth, she advised:
"22. Within the focus area there are residences that have a garage or carport at a lesser setback to 4.5 metres, however they generally comply with the Acceptable Development of Clause 3.2.3 "Set Back of Garages and Carports" of the Residential Design Codes. Clause 3.2.3 states that garages may be setback 1.5 metres from a secondary street and they may be setback 3 metres when vehicles are parked parallel to the street alignment.
23. No 37 Mary Street has a lesser setback and does not conform with the Acceptable Development of Clause 3.2.3 of the Residential Design Codes, however it does conform with the Performance Criteria as [in] this case it does not detract from the streetscape character.
24. No 37 Mary Street, Como still maintains the existing streetscape as it is still open, as there is no form of fencing around the property [and there] is a two storey dwelling which has a window that overlooks the street."
33 In his "Statement of Issues, Facts and Contentions" the applicant quotes examples just outside the "focus area" at 6 Ednah Street and at units 1, 2 and 3, 22 Mary Street where the garages have been set back 3.75 metres, 3.5 metres, 3.3 metres and 4.4 metres respectively. Similarly, he refers to other examples in his grounds for review at units 2 and 3, 27 Mary Street outside the "focus area" where the setback is less than the 4.5 metres prescribed in the Codes.
34 The applicant also refers to 37 Mary Street within the "focus area" which does not conform to the 4.5 metre setback specified in the Codes.
35 From the perspective of the Tribunal, although these examples are of interest in terms of developments on the ground, they provide no information as to the reasoning behind the respondent’s decision in each case.
(Page 12)
36 It is the Tribunal's view that each case must be treated on its merits and that approach is adopted in this review.
The matter of streetscape
37 The matter of streetscape is addressed in the Codes (Streetscape Requirements) with the Objective of the Design Element being:
"To contribute towards attractive streetscapes and security for occupants and passersby, ensure adequate privacy and open spacefor occupants, and provide an attractive setting for buildings."
38 The position of the respondent is that where a lesser setback for garages has been allowed within the "focus area", that the open streetscape character has been maintained.
39 In this case it is argued that the proposed conversion of the carport to a garage would be detrimental to the established streetscape character within the Mary Street "focus area".
40 The applicant takes a different view and cites the development opposite at 33 Mary Street (units 1 and 2) as more "closed-in" than the proposed development on the subject land.
Conclusions
41 The application for review has been lodged against a decision of the respondent to refuse an application for planning approval for the conversion of a carport to a garage.
42 In undertaking this review the Tribunal has examined the respective positions taken by the parties, the relevant legislative and policy provisions, some existing developments within the so-called "focus area" and nearby and the matter of streetscape.
43 The position taken by the respondent is that the proposed garage would cause a significant detrimental effect on an essentially open streetscape character by creating a "closed-in appearance and, in that sense, would not demonstrate design compatibility with other developments within the "focus area".
44 The respondent also argues that the proposed garage has inadequate dimensions to allow car doors to open (presumably with two vehicles parked side by side) and that there is no satisfactory evidence to
(Page 13)
- demonstrate compliance with the performance criteria of the Codes (cl 3.2.3) with respect to the setback for garages and carports or the relevant provisions of TPS 6 for car parking.
45 The position taken by the applicant is that the proposed garage will not have a detrimental effect on streetscape character and that it does demonstrate compliance with the relevant performance criteria of the Codes. Also, that it will not cause the property to be "closed-in" in comparison to 33 Mary Street directly opposite.
46 The applicant also argues the fact that the respondent is prepared to allow "open grille" security panels to enclose the garage is an acknowledgment that the dimensions of the structure are adequate.
47 In examining this matter the Tribunal was assisted with an on-site inspection by Senior Sessional Member Lloyd Graham together with the parties prior to the hearing. The following was observed:
(a) The existing carport (and proposed garage) is set back 2.9 metres from the front site boundary.
(b) There is an outdoor living area located within the front setback area with a 1.8 metre high solid fence around it.
(c) When approaching the subject land from the north the existing carport is largely obscured by existing vegetation on the adjoining property (Lot 2).
(d) When approaching the subject land from the south the existing carport is largely obscured by the 1.8 metre high solid fence.
(e) From directly opposite the subject land there is some sense of openness due to the open nature of the carport, and from some angles to the entrance not obscured by the front wall.
(f) The open frontage of 37 Mary Street could be seen within the "focus area" from the subject land together with the relatively closed frontage of 33 Mary Street (units 1 and 2) directly opposite.
48 From the perspective of the Tribunal the respondent's objective to achieve an open streetscape character is recognised as desirable, but this is clearly more easily achieved in the case of a single dwelling with a
(Page 14)
- 17.38 metre frontage (as in the case of 37 Mary Street) than a grouped dwelling(s) on the same (or similar) width lot with a driveway down one side of the dwellings within the lot boundaries. The width of Lot 3 containing the subject land and two other grouped dwellings, is 18.23 metres only.
49 Again, any openness on the subject land has been largely obscured by the existing built form with the construction of the 1.8 metre high boundary wall, and the carport itself includes existing brick pillars and brick walls of varying dimensions on both its north and south sides.
50 In other words, the situation on the ground to approve a carport of significant brick construction is the result of previous planning approvals.
51 In examining the Codes with respect to "Streetscape Requirements" the prime objective is that development should contribute to attractive streetscapes and security for occupants and passers-by.
52 It is a matter for conjecture as to whether a garage door, or an open grille design, would be a more attractive design option when viewed from the street but there is little doubt, as argued by the applicant at the hearing, that a garage would provide more privacy and security.
53 It also appears that within the "focus area" and immediately nearby, that garages are a more accepted means of housing vehicles than carports, and in that sense the proposed garage would be a more compatible design within the streetscape than a carport construction.
54 In terms of the dimensions of the proposed garage it is accepted that the 5.4 metre width is marginally narrower than the required 5.6 metres, but in the absence of a central brick column (requiring only one garage door) it means that if two vehicles are to be accommodated that there would be more manoeuvrability on entry. The garage width is not an overriding determinant in this matter.
55 However, of more importance is the effect of the proposed development on the adjoining property to the north (32 Mary Street), and the Tribunal is satisfied that it would be largely unaffected in the terms of [29] above by what is a relatively minor development.
56 Again, the Tribunal cannot agree with the respondent that the proposed garage would cause a "… significant detrimental affect on the streetscape character." Rather, the change to the overall streetscape, as explained in [49] above, will be minimal as the only apparent change to
(Page 15)
- the property when viewed from the street will be that of a garage door and the absence of some minor and relatively inconsequential view corridors presently existing through the carport. One will still be able to look past the garage towards the entrance to the property.
57 On balance the Tribunal believes that the proposed conversion of an existing carport to a garage on the subject land is fair and reasonable in the circumstances of this case, and that it will not detract from the existing streetscape.
Orders
For the foregoing reasons, the orders of the Tribunal are:
1. The application for review is upheld.
2. The decision under review is set aside.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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