GUTTINGER and CITY OF JOONDALUP

[2005] WASAT 316

GUTTINGER and CITY OF JOONDALUP [2005] WASAT 316

Last Update :12/01/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 316
Published:
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:442/2005	Heard:	2 AUGUST 2005
Coram:	MR P McNAB (MEMBER)	Delivered:	28/11/2005
No Pages:	10	Judgment Part:	1 of 1
Result:	1. Application for review dismissed. 2. Decision under review is affirmed.
Category:	B

Parties & Catchwords


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : GUTTINGER and CITY OF JOONDALUP [2005] WASAT 316 MEMBER : MR P McNAB (MEMBER) HEARD : 2 AUGUST 2005 DELIVERED : Edited reasons delivered extemporaneously on 28 NOVEMBER 2005 FILE NO/S : DR 442 of 2005 BETWEEN : ALEX GUTTINGER

Applicant

AND

CITY OF JOONDALUP
Respondent

Catchwords:

Town planning - Review of decision of local government authority not to approve a garage extension - Extension in the front setback - Neighbouring property with existing excessive garage extension - Significant compromise already offered by local government to applicant - Suburb dominated by landscape and not built form - Tribunal finding planning instruments favoured retention of existing nature of suburb and "street rhythm" - Suburb predominantly comprised of generous setbacks in a "green matrix" - Average setback of neighbourhood exceeding those specified in R­Codes - Exercise of


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discretion favoured retention of existing nature of suburb notwithstanding examples of past contrary approvals - Application refused

Legislation:

Residential Design Codes of Western Australia 2002, cl 2.3.2, Pt 3.2
City of Joondalup District Planning Scheme No 2, cl 6.8.1

Result:

1. Application for review dismissed.
2. Decision under review is affirmed.

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Mr S Sullivan

Solicitors:

Applicant : Self-represented
Respondent : Self-represented

Case(s) referred to in decision(s):

Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Saunders and City of Nedlands [2005] WASAT 190
Tooth and City of Subiaco [2005] WASAT 317
Trickey and City of Subiaco [2005] WASAT 256

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 In this review, the applicant (Mr Guttinger), sought to have the Tribunal reverse a decision of his local government authority (the City of Joondalup) which had the effect of preventing him from extending his front garage into the front setback of his property, an extension that he considered necessary to house his various motor vehicles and for related purposes.

2 The City of Joondalup had already compromised by offering a significantly reduced setback to the applicant.

3 A neighbouring garage had already extended significantly into the neighbouring front setback area. The Tribunal observed that approval for that neighbouring structure would probably not be granted today.

4 The Tribunal had regard to the general "garden" nature of the suburb (with wide boulevards, extensive setbacks in a "green matrix") and the stated aim of the governing planning instruments for discretionary decisions to, in effect, respect those local suburb characteristics.

5 The application was refused as, essentially it was inconsistent with those characteristics.

Introduction: the subject land and the development proposal

6 The subject land is lot 144, No 72 Granadilla Street, Duncraig located approximately 15 kilometres north of the Perth CBD, and one suburb east of Sorrento Beach and Hillarys Boat Harbour. The subject land is owned by the applicant, Mr Guttinger. It is a relatively large, but average size for this area, suburban block of approximately just under 800 square metres, by the Tribunal's calculations. It is coded "R20" which is a "low density" designation under the Residential Design Codes of Western Australia 2002 (R-Codes).

7 The subject land has a single dwelling (a brick and tile residence) built upon it in a building envelope located towards the front of the block, including ­ on the left, or "eastern" side of the land ­ an open carport and associated crossover. The original residence dates from 1977.

8 In November 2004, the respondent, the City of Joondalup, (the City), received an application for planning approval for an enclosed double garage with a depth of 6.2 metres located within the front setback area,

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replacing the existing carport. The garage would, in fact, house three vehicles, two of them in tandem.

9 The request was for a setback of the front of the proposed garage from the primary street of some 3 metres. The general standard set by the R-Codes for acceptable development is a setback of 4.5 metres: see cl 3.2.3, A3.5 of the R-Codes referred to with more particularity below. However, the average setback for the locality, according to the respondent, is some 6 metres.

10 Part of the application was also for an associated parapet wall. This would be located on the left or "eastern" side of the subject land next to an existing brick retaining wall (with appropriate facing to match).

11 Both in relation to the front setback and the side setback (for the parapet wall), the general standards in the R-Codes may be, in effect, varied if it can be demonstrated that certain prescribed criteria have been met. This is a matter discussed in more detail below.

12 It is common ground between the parties that the subject land is just east of the midpoint of the arc of that part of Granadilla Street which is bisected by Nicholli Street, to the northwest. The land also slopes downwards to Nicholli Street. The resulting curvature of the street (following the arc) and the fact that the subject land is lower than the neighbouring property are highlighted by the applicant in his case. The significant curve of Granadilla Street near the subject land is also noticed by the respondent as part of its case.

13 In addition, the slope towards Nicholli Street, already mentioned, means that the housing on the southern side of the Granadilla Street (where the subject land is located) is generally higher than that of the housing on the northern side of the street.

14 After deliberation and consultation with affected owners, in late December 2004, the City approved the development but with a setback of 3.5 metres (in lieu of 4.5 metres) on the front and 3.0 metres (in lieu of 6.0 metres) on the side in relation to the parapet wall. The basis for the approval for the front setback was that it would be "generally consistent with the adjoining garage [at No 70] and [will] therefore provide a general continuity in the setback of both garages". In addition, it was noted that "[t]he properties across the road have a finished floor level considerably lower than the level of the verge and therefore they do not have a direct view of the proposed development and their general view of the street is

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not significantly altered". The effect of the proposal, as approved, would be to reduce the internal depth of the garage to 5.4 metres.

15 The parapet wall was approved, in accordance with the R-Codes, on consideration of such matters as the fall of the subject land; privacy enhancement; general amenity; effective use of space considerations; and a lack of relevant adverse overshadowing.

Application for review

16 From so much of that decision dealing with the front setback at 3.5 metres in place of 3.0 metres, the applicant sought a review by this Tribunal in January 2005. The applicant seeks, in effect, approval from this Tribunal for an additional reduction in setback of 0.5 metres on top of what the respondent has already been prepared to grant to date. So far as the decision in relation to the parapet wall is concerned, the Tribunal understands that the applicant does not seek to challenge it. In any event, by reason of the decision of the Tribunal reached today, it is unnecessary to consider the associated matter of the parapet wall and its setback.

17 The matter was heard by the Tribunal in August 2005. Today, reasons are delivered explaining why this application for review and substitution of a decision in the applicant's favour has been refused.

The planning framework

18 It is not disputed that development approval was needed for the applicant's proposal under the City of Joondalup District Planning Scheme No 2 (DPS 2). By reason of cl 6.8.1 of DPS 2, there is incorporated by reference into the decision-making process for that approval, the statement of planning policy known as the R-Codes.

19 It is worth mentioning at this point that the criteria in the R-Codes are generally "to be given considerable if not the greatest weight", as the President of the former Tribunal observed in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 at [23].

20 Unlike other municipalities, there are no relevant supplementary or complementary local planning policies or design guidelines (although both DPS 2 and the R-Codes envisage such additional regulatory instruments). These are of particular relevance, of course, in older locations closer to the City, where such matters as development infill density, precinct character and heritage concerns feed into the decision-making matrix for both primary and review bodies (such as this Tribunal). The underlying reason for this distinction is that most inner

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City and some inner suburban streetscapes are "dominated by the built form" whereas suburban streetscapes, as here, are "dominated by landscape": R-Codes at 46. This is an important distinction that will be returned to below.

21 The Tribunal has had regard to Pt 3.2 of the R-Codes (particularly cl 3.2.3) so far as these provisions are relevant to setbacks for garages and the criteria for approval.

Applicant's case

22 In summary, the applicant's case is:

1. The City's proposal would have the effect of cramping access from the verandah into the garage (in relation to the final resting positions of the three vehicles proposed to use the garage).

2. There is no opposition from affected neighbours.

3. The streetscape would not be detrimentally affected by the additional 0.5 metres sought. Next door's garage is already prominent, located on a rise, with the applicant's property 1.2 metres on the lower side (hence the retaining wall).

4. In fact, looking from Nicholli Street, because of the fall of the subject land, the proposed garage would "soften" the bulk or impact of No 70's garage ­ which is not as close to the primary street as the proposed garage ­ and that garage would, in turn, camouflage to some extent the applicant's proposed garage (looking towards Nicholli Street).

5. Other examples exist in the neighbourhood demonstrating that the applicant's proposal is not necessarily that out of character. These were located on Granadilla Street, Bernedale Way, Nicholli Street and Tomatin Court.

6. By reason of the curvature of the street and the resulting small arc at the front of the property, the "western" or right (opposite to the proposed parapet wall side) and moving towards the centre of the property, is actually set back some 3.4 metres.

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7. An open carport would not be acceptable because of security concerns.

8. Landscaping could further soften the proposal.

9. The proposed roof design (namely a "hip-roof") would further soften both the proposed garage and next door's garage.

23 Mr Guttinger gave evidence of these matters at the hearing, and produced some useful site photographs (showing, in effect, a mock up of the brick height and location of his proposal, and the proposal as approved, in relation both to No 72 and No 70). He was cross-examined by the respondent's representative, Mr Sullivan.

The respondent's case

24 The City maintains ­ and it is not disputed ­ that the proposal measured against the specified factors in the acceptable development criteria of the R-Codes (which is referred to above) fails. That is, the proposed garage is set back less than 4.5 metres from the primary street. (It is agreed for present purposes that Granadilla Street is relevantly a "primary street".)

25 Thus, approval may be given under the alternative performance criteria of the R-Codes. The difference between acceptable development and the performance criteria is explained, for example, in Saunders and City of Nedlands [2005] WASAT 190 at [15] and it is unnecessary to reproduce that explanation here.

26 In essence, the respondent says that it has used its discretion to come to a fair compromise that recognises both the applicant's legitimate motives and the fact of the existing bulky structure next door at No 70, but keeps the principle of reasonable setback intact.

Assessment by reference to performance criteria

27 Three generalised elements are identified for success under the performance criteria: the proposal must not relevantly "detract from the streetscape" or detract from the "appearance of dwellings" or "obstruct views of dwellings from the street and vice versa": R-Codes 3.2.3 P3.

28 It is convenient to mention here that to the extent that the R-Codes would permit in some cases a proposal to proceed "where no feasible alternative existed", the respondent would allow a carport or other open

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structure, as contemplated by the R-Codes at 48, secured, if necessary, by a visually permeable grille or gate. However, as emerged at the hearing, this is not an option sought by the applicant.

29 In summary, the City's assessment of these three matters was as follows (under two headings):

Existing streetscape and appearance

30 Apart from an immediately neighbouring property at No 70 (a garage and games room approved in 1990, with a setback from Granadilla Street of 3.86 metres), it is said that the immediate area is generally open with, for example, enclosed front structures such as garages set back a minimum of 6.0 metres from the primary street. One nearby property has a garage set back at 8.6 metres (at No 74 Granadilla Street). These assertions were not relevantly challenged by the applicant and they are supported by the photographic evidence; they may be accepted. The "significant curve" in the street has already been referred to. In the respondent's view, the location of the subject land in relation to the curve and slope of the road and general localised topography all work together to increase, not lessen, the impact of the proposal.

Obstruction of views

31 The respondent suggests that there is "a possibility" that the proposed development would obstruct views from the applicant's living room looking to the north-east.

Other matters raised by the City

32 The respondent also submitted that:

1. The relevant Australian Standard for a double garage (AS2890.1) is exceeded by the applicant's proposal, but it is just short of what tandem parking would generally require.

2. The other properties referred to by the applicant were either on secondary streets or were approved prior to the 2002 R-Codes and were thus not true comparators.

3. The parapet wall itself would also add to the bulk of the development.

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4. Landscaping would do little to soften the impact of the garage given how far forward the proposed structure would rest.

5. If approval were granted here, there could be further pressure on the respondent to grant the same, or even further reduced setbacks, elsewhere in the municipality.

Discussion of the evidence and the issues

33 Most, if not all, of the essential factual material in this review is not in dispute. The Tribunal generally accepts the evidence of the respondent and the opinion evidence of its planning officer, Ms M Stephens.

34 The photographs attached to the respondent's witness statement show a pleasant suburb with tree lined, relatively wide and gently winding boulevard type roadways. The homes and associated structures are generally considerably set back from the low kerb streets and footpaths. The subject land and its surrounds adequately meet the description contemplated by the R-Codes of an "open" and not a "contained" streetscape: that is, one "dominated by landscape [and not the built form], with buildings set back from the street and each other in what could be described as a green matrix": R-Codes at 46 (emphasis added).

35 That is, importantly, the existing streetscape by which, principally, the proposed development must be measured. Moreover, the R-Codes counsel that "new development should closely conform to the existing pattern" of streetscape, and design control should follow the "street rhythm" of the area: R-Codes at 47 and 50.

36 The Tribunal considers that the proposal does not meet either the acceptable development or the alternative performance criteria set out in the R-Codes. In short, to have another bulky structure on the bend and slope to Granadilla Street at this point considerably further forward of the structure at No 70, even if lower than No 70, would do nothing for streetscape or the amenity of the area generally and would, in the Tribunal's view, exacerbate or compound the damage to streetscape already done by reason of the immediately neighbouring structure, a structure which the Tribunal notes would be unlikely to be approved nowadays.

37 It is no answer to say that someone else has already set a "precedent" by reason of their approved development under a different regulatory regime, or that only an extra 0.5 metres is involved. In the Tribunal's

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view, the relevant standards should not be compromised any further than the respondent has already reasonably allowed. And, in any event, no case has been put forward in terms of proper planning principles to show why the respondent's approach was in error.

38 Further, on the material available, there is nothing in the previous relevant decision-making of the City, or in previous decisions of the former Town Planning Appeal Tribunal or this Tribunal, so far as they are analogous, that would suggest support for the applicant's case.

39 Recent decisions of the Tribunal in Tooth and City of Subiaco [2005] WASAT 317 and Trickey and City of Subiaco [2005] WASAT 256 also suggest respect for maintaining streetscape even if the relevant planning policy is aimed at or has the effect of only preserving what is left. In the Tribunal's view, this should be generally so in terms of planning principle, as is contemplated by the R-Codes themselves, and demonstrated by those particular decisions just cited. This is so, even if those decisions relate to an inner suburban and historic municipality dominated by the built form. A fortiori, that should be the position here where a suburban open streetscape is a long way from being substantially compromised.

40 For these reasons the application must be dismissed.

Orders

41 The Orders of the Tribunal are therefore as follows:

1. The application for review is dismissed.

2. The decision under review is affirmed.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR P McNAB, MEMBER