GOBETTI and TOWN OF CAMBRIDGE
[2007] WASAT 14
•22 JANUARY 2007
GOBETTI and TOWN OF CAMBRIDGE [2007] WASAT 14
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 14 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:252/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MS M CONNOR (MEMBER) | 21/01/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | MAUREEN GOBETTI TOWN OF CAMBRIDGE |
Catchwords: | Town planning – Development Construction of proposed carport and associated paving area results in deficiency in landscaping within the front setback area – Departure from acceptable development provisions of the Town of Cambridge Residential Design Guidelines – Whether proposal satisfied relevant Performance Criteria Street setback to present a substantially "green" appearance |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA) Residential Design Codes of Western Australian 2002 Town of Cambridge Residential Design Guidelines, cl 2.1.4 Town of Cambridge Town Planning Scheme No 1, cl 5, cl 5(3)(c), cl 17, cl 18, cl 33(1)(e), cl 33(2), cl 33(2)(a), cl 33(2)(b), cl 38(3), cl 38(4), cl 48, Zoning Table |
Case References: | Nil Nil |
Orders | On the application determined by Member Marie Connor on 22 January 2007, it is ordered that:,1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GOBETTI and TOWN OF CAMBRIDGE [2007] WASAT 14 MEMBER : MS M CONNOR (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 22 JANUARY 2007 FILE NO/S : DR 252 of 2006 BETWEEN : MAUREEN GOBETTI
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning – Development - Construction of proposed carport and associated paving area results in deficiency in landscaping within the front setback area – Departure from acceptable development provisions of the Town of Cambridge Residential Design Guidelines – Whether proposal satisfied relevant Performance Criteria - Street setback to present a substantially "green" appearance
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
(Page 2)
Residential Design Codes of Western Australian 2002
Town of Cambridge Residential Design Guidelines, cl 2.1.4
Town of Cambridge Town Planning Scheme No1, cl 5, cl 5(3)(c), cl 17, cl 18, cl 33(1)(e), cl 33(2), cl 33(2)(a), cl 33(2)(b), cl 38(3), cl 38(4), cl 48, Zoning Table
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr P Bracone (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Town of Cambridge
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 Mrs Gobetti applied to the State Administrative Tribunal for a review of the decision of the Town of Cambridge not to approve a planning application for a double carport with hard paving in the front setback area of Lot 1414 (No 94) Nanson Street, Wembley.
2 The proposed development involved a departure from the acceptable development provisions of the Town of Cambridge Residential Design Guidelines in relation to landscaping in the primary street setback area. A series of amended plans had been submitted to the Town of Cambridge in an attempt to address some of the concerns. The final amended proposal designated 30% of the front setback area as landscaping.
3 The Tribunal found that the landscaping area was a subsidiary element to the proposed carport and resultant paving and as such, the street setback area would not present a substantially "green" appearance. The Tribunal was not satisfied that the variation/discretion sought satisfied the relevant performance criteria and determined that the exercise of discretion in this instance would compromise the objectives of the Town of Cambridge Residential Design Guidelines.
Introduction
4 Mr and Mrs Gobetti (owners) submitted a planning application to the Town of Cambridge (respondent) on 1 July 2005 seeking approval for the construction of a carport within the front setback area of Lot 1414 (No 94) Nanson Street, Wembley (subject land), as well as a front screen wall. The application was considered by the respondent at its meeting held on 23 August 2005. The respondent dealt with the two components of the application separately and resolved:
"(i) in accordance with the provisions of Part 4 of the Town of Cambridge Town Planning Scheme No. 1, the Council APPROVES the application for a front fence submitted by T & M Gobetti at Lot 1414 (No. 94) Nanson Street, Wembley as shown on plans dated 1 July 2005;
(ii) the applicant be advised that Council is not prepared to approve the application for a front carport with hard paving to the front of the existing residence as submitted by T & M Gobetti at Lot 1414 (No. 94) Nanson Street,
- Wembley as shown on plans dated 1 July 2005 for the following reasons:-
- (a) non compliance with Clause 2.1.4 of the Residential Design Guidelines which a minimum of 60% of landscaping in the front setback area; and
(b) the amount of hard paving proposed for the site would have an adverse impact on the amenity of the streetscape; and
(c) there are no extenuating circumstances in this instance that would support such a substantial variation to the Council's Residential Design Guidelines;
- (iii) the Council would be prepared to give favourable consideration to amended plans incorporating the following modifications:-
• a minimum of 60% landscaping being provided in the front setback area;
(iv) in accordance with the provisions of Part 4 of the Town of Cambridge Town Planning Scheme No 1, Council authorises the Chief Executive Officer to approve the application for a carport and hard paving to the front of the existing single house at Lot 1414 (No. 94) Nanson Street, Wembley subject to the plans being amended in accordance with the changes referred to in (ii) above."
5 In an attempt to address the concerns raised by the respondent, a series of amended plans, dated 16 September 2005, 30 November 2005 and 12 May 2006, were submitted to the respondent for consideration. The respondent in determining each of the amended plans resolved that it was "not prepared to approve the amended application", the principal reason being that the proposal was non compliant with cl 2.1.4 of the Town of Cambridge Residential Design Guidelines (June 2005) (Residential Design Guidelines), which requires a minimum of 60% landscaping in the front setback area.
(Page 5)
6 Mrs Gobetti (applicant) on 20 July 2006 made application to the State Administrative Tribunal to have the decision reviewed.
Subject land
7 The subject land is referred to as Lot 1414 (No 94) Nanson Street, Wembley. There is an existing single storey dwelling on the subject land that has a single garage along the northern side of the dwelling.
8 A right-of-way, which is owned by the Town of Cambridge, is located at the rear of the subject land.
Proposal
9 The original application proposed to construct a double carport (7 metres by 6 metres) in front of the existing dwelling, located in the south-west corner of the subject land. The carport was designed to sit parallel to the street, set back 1 metre from the street boundary. A reversing bay was also provided. According to the assessment undertaken by the respondent's planning officers the area of landscaping within the front setback area equated to approximately 19%.
10 The subsequent amended plans modified the paving area in an attempt to increase the amount of landscaping within the front setback area. The final amended plan, dated 12 May 2006, reduced the size of the double carport (6.5 metres by 5.5 metres) and relocated the structure 4.0 metres from the southern boundary of the subject land. According to the assessment undertaken by the respondent's planning officer, the amended proposal provided 30% of the front setback area as landscaping.
Planning framework
11 The subject land is zoned "Urban" in the Metropolitan Region Scheme and "Residential" with a permitted site density of R20 under the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme).
12 Clause 5 sets out the "Objectives and Intentions" of TPS 1. A general objective of the scheme that is of particular relevance to this matter is:
"5(3)(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."
13 Clause 17 of TPS 1, which reinforces the objective stated in cl 5, divides the Scheme Area into Precincts. The subject land is located in Precinct "P4 Wembley".
14 The "Zoning Table" contained in TPS 1 classifies the use class "Dwelling (Single)" as a "P" (permitted) use in the "Residential" zone. A carport is an integral structure that forms part of a "Dwelling" and as such would be considered to fall within that use class category. Therefore, the proposed development is a permitted use within the "Residential" zone.
15 Under sub-clause 33(1)(e) of TPS 1, planning approval is not required for the erection of a single house or ancillary outbuilding on a lot in a zone where the proposed use is designated as a "P" use, except where otherwise provided by the Scheme. Notwithstanding this provision, any person who wishes Council to exercise discretion under the Residential Design Codes of Western Australia 2002 (Codes) or a planning policy must seek Council's approval for the variation (sub-clause 33(2)). This application requires a departure from the acceptable development provisions of the Residential DesignGuidelines in regards to "Landscaping in the Primary Street Setback Area".
16 Before granting approval to the requested variation, the Council must satisfy itself, in the first instance, that the discretion requested is one which the Council has the power to approve and secondly, that granting of that discretion would not compromise the objectives of the Codes or planning policy (subclause 33(2)(a) and subclause 33(2)(b)).
17 Clause 18 of TPS 1 requires the development of land to be in accordance with standards and requirements contained in the Scheme text, planning policy and the Codes, unless otherwise consistent with a planning approval.
18 Subclause 38(3) of TPS 1 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Without limiting the scope of the discretion to determine an application, subclause 38(4) sets out the matters to which regard is to be had in the determination of an
(Page 7)
- application. The relevant matters relating to this application are as follows:
"(a) the provisions of this Scheme and of any other written law applying within the Scheme Area including the Metropolitan Region Scheme;
(b) any relevant Planning Policy;
…
(e) any submission accompanying or related to the application;
(f) the orderly and proper planning of the locality; and
(g) the conservation of the amenities of the locality."
20 The Residential Design Guidelines fall into two separate parts being:
1) the "Precinct Statements" which describe the character of each precinct and the respondent's aspirations for each; and
2) the "Development Requirements" which sets out the detailed objective and requirements, in addition to the Codes, which are to apply to new development.
21 Of relevance to this matter are the "Development Requirements" which provide alternative requirements to the Codes for specific "Design Elements". Of particular relevance are the requirements relating to "2.1.4 Landscaping in the Primary Street Setback Area".
22 The acceptable development provision relating to this aspect of the design requires a minimum of 60% of the primary street setback area to be landscaped. Development that complies with this requirement is deemed to meet the relevant performance criteria. If development departs from the acceptable development provision then it is required to satisfy the following performance criteria:
(Page 8)
- "• The street setback area developed and planted to present a substantially 'green' appearance, allowing views to the dwellings; and
• Development which minimises impact on the natural topography of the locality and conserves significant landscape elements, including indigenous trees."
23 The respondent contends that the proposed development does not satisfy the performance criteria of cl 2.1.4 of the Residential Design Guidelines as the street setback area will not present a substantially "green" appearance, which will have a detrimental impact of the amenity of the streetscape. The respondent furthers asserts that relocating the carport will increase the amount of landscaping, thus reducing the impact of the development on the streetscape.
24 The applicant contends that there are other similar developments within the street that have reduced landscaped areas and that the proposed development is consistent with the streetscape setting. Photographs of a similar development at No 91 Nanson Street were produced by the applicant. The applicant claimed that that this development only provided 32% landscaping within the front setback area. The respondent acknowledged that there were other examples in the locality where the landscaping requirement was less than that provided for in the acceptable development provisions but that these examples provided considerably more landscaping in the front setback area than the proposed development. The respondent disputed the applicant's claim that the development at No 91 Nanson Street provided only 32% landscaping and asserted that the planning application was approved with 45.6% landscaping, considerably more than the 30% proposed by the fourth application submitted by the applicant.
25 The applicant also argues that although the landscaped area within the front setback area does not meet the acceptable development provisions, the area between the existing dwelling and the front setback area is landscaped and this area, together with the existing large street tree provides sufficient "greening" in front of the dwelling. The respondent contends that although the street tree provides "greening" to the street, it should be supplementary to and not a substitute for an owners obligation to contribute to the amenity of the streetscape. Furthermore, Wembley has a tradition of green streetscapes and that this feature is protected and
(Page 9)
- ensued in the policy by requiring the area most perceptible to the overall streetscape to be landscaped.
26 The applicant cited other reasons for supporting the proposed development, which included water conservation and safety (the paving area is increased due to the need for a reversing bay). The respondent did not consider these reasons sufficient justification for the subsequent shortfall of landscaping. In relation to water conservation the respondent argues that water conservation is not considered an acceptable justification for forfeiting the required landscaping requirement as there are alternative forms of landscaping which are acceptable, such as garden beds, shrubs, trees and others features, that do not require the same amounts of water as lawn but provide the same visual outcome. In response to the safety concerns raised by the applicant, the respondent submitted that Nanson Street was a local access road, carrying approximately 381 vehicles per day, which on the bases of these figures was considered to be a safe road suitable for a reverse exit from a property.
27 In response to the respondent's assertion that the carport can be relocated the applicant maintains that the relocation would result in the existing garage being inaccessible and defunct and that the carport would have a sloping floor due to the topography of the land.
Tribunal's consideration
28 The Wembley Precinct, as described in the Residential Design Guidelines, has long straight streets with a regular rhythm of consistent setbacks, cultivated gardens, low boundary fences, street lawns, regular street trees and similar style single storey houses. The intent of the development requirements as set out in the Residential Design Guidelines is to ensure streetscapes remain open, landscaped and visible from the street.
29 The acceptable development provisions of cl 2.1.4 of the Residential Design Guidelines requires a minimum of 60% of the primary street setback area to be landscaped. The proposed development departs from this requirement and is therefore required to be assessed against the performance criteria of the Residential Design Guidelines.
30 The construction of a double carport, parallel to the street results in substantial areas of the front setback area being paved. The dominant feature within the front setback area will be the carport and its associated paving, whereas traditionally the front setback areas in the
(Page 10)
- Wembley Precinct have been developed as gardens. The evidence shows that the landscaping area is a subsidiary element to the proposed carport and resultant paving and will not present as a substantially "green" appearance. The applicant cited a similar example in Nanson Street, although there was some dispute between the parties regarding the amount of landscaping provided by this proposal. The Tribunal does not consider the existence of one similar example to be sufficient reason to support further such proposals within the street, particularly as the proposed development does not reflect the form of development envisaged within this Precinct. Furthermore, the other reasons stated by the applicant relating to water conservation and safety are not relevant considerations to the performance criteria that needs to be satisfied. Therefore, for the reasons stated above, the Tribunal is not satisfied that the variation/discretion sought satisfies the relevant performance criteria and considers that the exercise of discretion in this instance would compromise the objectives of the Residential Design Guidelines.
31 Submissions were made by the parties relating to other possible alternate locations for the carport on the subject land. The Tribunal is charged with determining the matter at hand and did not form any conclusions in respect to other possible alternatives available to the applicant.
Orders
32 For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
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