HARTONO and CITY OF NEDLANDS
[2010] WASAT 143
•4 OCTOBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HARTONO and CITY OF NEDLANDS [2010] WASAT 143
MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
SITE VIEW 19 AUGUST 2010
DELIVERED : 4 OCTOBER 2010
FILE NO/S: DR 83 of 2010
BETWEEN: MICHAEL BAMBANG HARTONO
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning - Development application - Carport in front setback area - Open streetscape - Whether the development would adversely impact on streetscape - Whether the development would adversely affect the amenity of the locality
Legislation:
City of Nedlands Town Planning Scheme No 2, cl5.3.3, cl 5.6, cl 5.6.2, cl 5.10.1, cl 5.10.2, cl 6.3, cl 6.4.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2.3
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Application for review dismissed
Development approval refused
Category: B
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Mr S Allerding (Town Planner)
Solicitors:
Applicant: Hardy Bowen
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a development application for a carport located within the front setback area of No 64 Jutland Parade, Dalkeith.
The proposed carport was to be constructed in the front setback area of a 1,400 square metre survey strata lot on the subject site. The relevant survey strata lot was one of five survey strata lots approved on the subject site. A current development approval existed for a substantial residence on this lot with basement parking for more than two cars (up to six) plus a boat. The carport was to be constructed in the same materials and at the same time as the previously approved residence. It was to be attached to the residence with three sides remaining open and was intended to function as a portcochere/carport. It was agreed by the parties that for the purpose of assessment against the Scheme and relevant local policies the proposed structure was a carport.
The matter was determined on the documents provided by the parties and a view of the site was taken by the Tribunal in the company of the parties' expert planning consultants. The view confirmed that the site is located within an open streetscape opposite land zoned park and recreation and currently used for lawn bowls and tennis. The neighbouring residences are setback a minimum of 9 metres with the exception of one carport which is setback 6 metres from the front boundary.
The Tribunal found that the proposed development would have an adverse impact on the existing open character of this section of Jutland Parade. The Tribunal was of the opinion that as the subject site was currently vacant and the relevant survey strata lot had an area of 1,400 square metres and was regular in shape with no significant existing vegetation, the opportunity existed for a design which complied with the required setbacks of 9 metres generally.
It was the Tribunal's view that the proposed 6 metre by 6 metre carport would appear as an extension of the main residence particularly as it was to be constructed using the same materials and colours. Notwithstanding the fact that the carport was to be open on three sides, the massive piers and parapet walls concealing the roof would be strong architectural elements that would give substantial bulk to the building. As the previously approved residence had a setback of 9 metres and the carport a setback of 3.5 metres, the entire building would now appear to project in to the front setback area.
The application for review was dismissed and the decision of the City of Nedlands to refuse development approval was affirmed.
Introduction
These proceedings involve an application brought by Mr Michael Bambang Hartono, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Nedlands made on 23 February 2010 to refuse development approval for a carport at No 64 (Lot 23 and Pt 24) Jutland Parade, Dalkeith.
Site and locality
The subject site is all of the land on survey strata plan 58424 and has a total area of 5,281 square metres. The proposed carport is located on Lot 1 of this survey strata plan and has an area of 1,400 square metres. The subject site has a 40.23 metre total frontage to Jutland Parade with 31.9 metres of this frontage being part of Lot 1 of the survey strata plan.
The subject site is located on the south side of Jutland Parade with residential properties of varying sizes to the west and east. The land to the north side of Jutland Parade, directly opposite the subject site, is reserved for Parks and Recreation under the Metropolitan Region Scheme (MRS) and is currently used for lawn bowls, tennis courts and car parking. Land to the south of the subject site, adjacent to the Swan River, has also been reserved for Parks and Recreation. The entire subject site, including Lot 1, is currently vacant.
The Tribunal had the benefit of a view of the subject site in the company of the planning experts on 19 August 2010. The Tribunal walked approximately 200 metres to the intersection with Wattle Avenue to the east and 30 metres to the public parkland to the west of the subject site. Of the eleven properties which front directly on to Jutland Parade it was seen that one property had a carport in the front setback area. It was estimated that this carport had a setback of approximately 6 metres from the street and according to the respondent, was approved in 2001 and replaced a structure which had a 2.5 metre setback.
The existing properties in this section of Jutland Parade generally have a street setback of more than 9 metres. The newer residences have two to three levels and are designed to maximise the views of the Swan River to the south. There are a variety of low and open aspect front fences and the open character of this section of the street is further defined by the park and recreation spaces to the north (lawn bowls and tennis courts) and west (parkland) of the subject site.
Proposed development
The proposed development is a 6 metre by 6 metre carport attached to the front (northern) façade of a new residence but open on the three remaining sides. It is to be constructed at the same time as the previously approved residence in the same materials with a concealed roof and a height of 3.9 metres. The previously approved residence has a setback of 9 metres and the carport has a setback of 3.5 metres from the front boundary (Jutland Parade).
Background
In June 2005, the Western Australian Planning Commission granted subdivision approval for five survey strata lots on the subject site. This approval has since lapsed and a new approval was granted in September 2009.
In June 2009, planning approval was granted for a three storey single house with basement garage and pool on Lot 1 of the subject site. The proposed residence has a 9 metre front setback.
In October 2009, the city received an application for development approval for a carport on Lot 1 of the subject site with a 3.5 metre front setback.
Council's decision
At its Council meeting held on 23 February 2010, the City resolved to refuse the development application for the following reasons:
1)the development is contrary to the City's Policy 6.23 Carports and Minor Structures forward of the Primary street Setback; and
2)the development would adversely affect the amenity of the surrounding area.
Planning framework
The site is zoned 'Urban' under the MRS. The site is zoned 'Residential' and has a residential density coding of 'R12.5' under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme). The site is located within the Development Control Area under TPS 2.
Clause 5.3.3 of TPS2 provides that:
Notwithstanding the provisions of the Residential Planning Codes a person shall not commence or carry out the development of any land within a Residential zone:
(a)by the erection of a building used for residential purposes at a distance of less than 9m from a street alignment unless otherwise provided in the Scheme. Council may vary this requirement for development within new large scale comprehensively designed subdivisions.
(b)on lots on one side of a section of a street which runs between two cross streets where more than half of the lots have dwellings thereon which are set back less than 9m, the Council may permit the erection or extension of a dwelling to be closer than 9m to the street boundary;
(c)maximum building heights for residential development shall be determined in accordance with the provisions of Clause 5.11 of this Scheme.
Clause 5.6 of the Scheme concerns outbuildings, garages, carports and fences and specifically cl 5.6.2 provides that:
Without limiting the generality of Clause 6.5 where in the opinion of the Council a carport to be constructed on the portion of the lot between the street boundary and the setback line, by reason of its height, bulk or proposed use may adversely affect the amenity of the surrounding area the Council may impose conditions on its approval and without limiting the generality of the foregoing the following shall apply:-
(a)the roof plan area of the carport shall not be greater in area than 36m2;
(b)no fence or wall erected or used in conjunction with the carport shall be more than 1.8m above natural ground level measured at the centre of the carport; and
(c)no gate erected in front of the carport shall be more than 1.8m above natural ground level, or shall open in such a manner as to obstruct vision through an area enclosed by a 1.5m x 2.5m truncation to each side of the driveway at the street boundary.
(d)the carport shall be open on all sides unless constructed adjoining a boundary fence or wall of a building, in accordance with Council policy.
The subject site is located within a Development Control Area as defined in TPS 2 cl 5.10.1 and 'shall require the Council's special approval.'
Clause 5.10.2 of TPS 2 continues:
Without limiting the generality of Clause 6.5 in determining an application for approval of development in a Controlled Development Area:
(a)the Council shall consider the effect of the development on the amenity of the surrounding area, the visual effect of the development as perceived from the Swan River and the effect on the amenity of the parks and recreation reserves in that area in accordance with Council policy from time to time determined for each Controlled Development Area;
...
(c)the Council may refuse development approval or impose conditions on a development approval where it considers that the amenity of the area may be detrimentally affected by the proposal.
Clause 6.3 of TPS 2 relates to special procedures required by Council before determining an application in certain cases including relevantly, development in controlled areas. Clause 6.4.2 states that:
6.4.2In respect of an application for planning approval made under Clause 6.3 the applicant shall satisfy the Council that the following conditions and standards have been met.
...
(b)the plot ratio, site coverage, setbacks, height, landscaping and parking provisions are in keeping with the general character of the locality;
(c)the form, layout, appearance and material of any building is in keeping with the existing character of the locality;
Issues
Pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), this matter has been considered on the documents provided by the parties.
The Tribunal has been provided with the Applicant and Respondent's Statement of Agreed Facts in which it is agreed 'that the subject structure is a carport for the purposes of assessment against the City of Nedlands Town Planning Scheme and relevant Local Policies'.
The parties agree that as well as TPS 2, Local Planning Policy 6.23 Carports and Minor Structures Forward of the Primary Setback (LPP 6.23) is relevant in respect of assessment of the application.
A summary of relevant clauses of TPS 2 are listed under the heading Planning Considerations above and specific provisions of LPP 6.23 will be discussed in more detail below but importantly, the parties agree 'that the policy provides for variations following an evaluation for noncompliant applications where an evaluation is undertaken to determine whether the variations have impact on either the relevant adjoining property or the streetscape'.
The key issue that arises from this review is whether the proposed carport with a setback of 3.5 metres will have an adverse impact on the streetscape and the amenity of the surrounding area.
Whether the development would adversely impact the streetscape and the amenity of the locality
The introduction of LPP 6.23 states that TPS 2 'generally provides for a 9 metre setback although Council has the discretion to vary the provision' and does so through the application of various policies.
The purpose of LPP 6.23 is '[t]o ensure that the present open character and street amenity of the City of Nedlands is not compromised by the construction of carports and other small structures within the primary street setback area.'
The Policy Statement is as follows:
Carports
(a)Materials and Construction Methods
Any structure located in the primary street setback area shall use similar materials and construction methods as the main building.
(b)Setbacks
Applications for carports forward to the required setback must be in accordance with Clause 5.6.2 of the Town Planning Scheme No. 2 and the following requirements:-
(i)New Development
Notwithstanding any other provision in this policy where a carport is to be constructed as part of a site redevelopment (i.e. new residence) then that carport should be located behind the required front boundary setback line.
(ii)Existing Development
Carports will only be approved forward of the primary street setback under this policy, provided a minimum of five (5) years has elapsed since the issue of a building licence by the City for the existing dwelling on the lot or for significant alterations/additions to the dwelling which result in the need for a carport in this location.
Carports may be constructed forward of the required primary street setback, but the side facing the street must be left open. Council will however consider wrought iron or tube steel gates/fencing along the side facing the street for security purposes.
The following setbacks shall be deemed as standard and measured to the columns of the carport. All setbacks are measured at right angles to the wall and not the boundary.
Primary Street Setback 3.5 metres
Side Boundary 1.0 metres
Secondary Street Setback In accordance with [Codes] ...
(c)Variations
(i)Where an application is received that does not comply with the abovementioned requirements, then an Officer will evaluate the application to determine whether the variation will have impact on either the relevant adjoining property or the streetscape.
Note : some factors which may influence the evaluation are:-
•existing buildings;
•existing trees or vegetation;
•topography of site;
•lot size and/or shape.
(ii)Should it be determined that the variation will have a significant adverse impact on either the adjoining properties or the streetscape, the applicant will be contacted and requested to locate the carport in compliances with the standard requirements.
(iii)Should the applicant refuse to or be unable to, comply with the standard requirements then the Council will contact, in writing, in relevant adjoining property owner and any other property owners which (in the opinion of the Officer) may be affected, so that they have the opportunity to view the proposal and make comments should they wish.
...
(iv)Should the Officer, after the consultation period, conclude that the variation will significantly affect the amenity of other properties and/or the streetscape (regardless of whether objections have been received) then the following should occur.
•a Development Refusal be issued, or
•a conditional Development Approval is issued which addresses the areas of concern which are raised.
(v)This policy does not preclude an Officer or the Council from referring any Development Application to Council.
The Tribunal received witness statements from two planning experts, Mr David Caddy, on behalf of the applicant, and Ms Amanda Butterworth, on behalf of the respondent.
In his witness statement, Mr Caddy expressed the view that:
... due to the distance of the proposed carport from neighbouring properties to the east and west, the road separation and relatively benign use of the neighbouring property to the north of the site, the consistent design of the proposed carport with the approved development on the site and open nature of the proposed carport [he does] not believe that the proposed carport will impact on relevant adjoining properties in any adverse manner.
He is also of the opinion that the carport will not adversely impact on the streetscape of Jutland Parade because:
... the open design of the carport with planter boxes approved in between it and the front boundary of the site and the larger than normal overall width of the subject site [means] the carport will present a landscaped and open streetscape in accordance with the design intent of Policy 6.23 and the current streetscape of Jutland Parade.
Ms Butterworth, in her witness statement addressed some of the factors to be considered when evaluating variations under LPP 6.23. It is her view that as the subject site is currently vacant, contains limited vegetation, has a regular lot shape and an area of 1,400 square metres then there are few limitations regarding the location of a carport on the site and therefore 'the site characteristics do not warrant variation to the policy in this situation'.
In regard to streetscape, she notes that:
... with the exception of the carport at 56 Jutland Parade (which is setback 6 metres) all development is generally setback 9 metres or greater. Approval of this carport would introduce a substantial structure in a street that presently has an open character ... [and] ... the purpose of the policy is to ensure that the present open character and street amenity is not compromised by the construction of carports within the primary street setback area.
The Tribunal agrees with both of the planning experts in regard to the existing open character of the streetscape in this section of Jutland Parade and this was confirmed by the site visit.
The Tribunal is also in agreement with Mr Caddy with regard to the limited impact of the proposed development on the neighbouring properties to the east and west. But with regard to the impact of the proposed development on the streetscape the Tribunal prefers the evidence of Ms Butterworth.
It is the Tribunal's opinion that the proposed 6 metre by 6 metre carport structure attached to the previously approved residence will appear as an extension of the main dwelling particularly as the materials and colours are to be consistent. Notwithstanding the fact that the carport is to be open on three sides, the massive piers and parapet walls concealing the roof are strong architectural features and give substantial bulk to the building. As the previously approved residence has a setback of 9 metres and the proposed carport a setback of 3.5 metres, the entire building will now appear to project in to the front setback area.
The Tribunal finds that the proposed development will have an adverse impact on the existing open streetscape of this section of Jutland Parade and therefore the amenity of the locality. The proposal is inconsistent with the relevant Scheme provisions, including LPP 6.23, in relation to streetscape.
It should be noted that Mr Caddy is of the view that five years after the issue of a building licence for the previously approved residence on this site that approval for a carport in the front setback area will be granted on the basis of 'existing development' in LPP 6.23. The Tribunal does not agree with this interpretation of LPP 6.23 and is of the opinion that it allows for the possibility of approval but development approval is by no means guaranteed. In any case, this application does not satisfy the minimum five year time frame and will therefore be assessed on the basis of a 'new development'.
The parties referred to the Residential Design Codes of Western Australia (2008) (Codes) cl 6.2.3 'Setback of garages and carports' in the documents.
The Codes' Explanatory Guidelines state that generally development within the street setback area 'should be open, enabling a clear view of the building from the street, and vice versa' and specifically that 'where no feasible alternative exists, the street setback area may be used for carports and unroofed parking spaces'. In this case the previously approved residence has a substantial basement suitable for more than two cars plus a boat. It is therefore difficult to argue that there is no feasible alternative for the parking of cars other than in the front setback area.
The Codes' Explanatory Guidelines address the complete redevelopment of a site located within an established streetscape and states that:
any garage or carport accessed from the street should be set back in accordance with the general building setback unless:
•the area, dimensions or shape of the site make this unfeasible; or
•there is an established, consistent, pattern of carports within the setback area.
In this case, the site is 1,400 square metres and regular in shape and there is only one property in this section of Jutland Parade with a reduced setback and that is 6 metres, not the proposed 3.5 metres.
The performance criteria for cl 6.2.3 Setback of garages and carports are:
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.
The Tribunal is of the view that the proposed 3.5 metre setback of the carport will detract from the open character of the existing streetscape and therefore finds that the proposal does not satisfy the performance criteria of the Codes.
Conclusion
The Tribunal has determined above that the proposed development will have an adverse impact on the existing open streetscape of this section of Jutland Parade and therefore the amenity of the locality.
The proposed carport setback of 3.5 metres from the front boundary is inconsistent with relevant Scheme provisions in relation to streetscape and therefore contrary to orderly and proper planning.
It follows that the application for review should be dismissed and the decision of the Council to refuse development approval for a carport in the front setback of the subject site should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 23 February 2010 to refuse development approval for a carport at No 64 (Lot 23 and part 24) Jutland Parade, Dalkeith is affirmed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER
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