| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HEFFER and CITY OF SUBIACO [2013] WASAT 40 MEMBER : MR J JORDAN (MEMBER) HEARD : 14 DECEMBER 2012 DELIVERED : 18 MARCH 2013 FILE NO/S : DR 77 of 2012 BETWEEN : DR RAY HEFFER Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords: Town planning Development Conditions of approval Proposed house with attached dental surgery Corner location Garage proposed at rear of lot Condition of approval requiring redesign of crossover to garage to avoid conflict with neighbouring crossover Bitumen right of way close by Crossover to carport at rear of neighbouring lot located between rear of site and right of way Vehicle access proposed to cross neighbouring crossover to gain access to right of way Safety concerns of intersecting right crossovers Policy preference for rear vehicle access to a right of way Impact on streetscape of additional crossover from street to proposed garage
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Legislation: Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010), cl 6.2.6 P6, cl 6.5.4 P4
State Administrative Tribunal Rules 2005 (WA), r 10
Transfer of Land Act 1893 (WA) Result: Review dismissed
Summary of Tribunal's decision: Proposed as part of the development of a house, with attached dental surgery on a corner lot, was a 6.5 metre wide paved vehicle access to a double garage. The vehicle access would be parallel to Rankin Road and would include an area of the verge because the site tapers to 2.33 metres at the eastern boundary. A vehicle leaving the garage would reverse from the site, then at right angles across an existing adjoining crossover to enter a right of way, also at a right angle.
The City of Subiaco imposed a condition of approval that required the proposed access to the garage to be revised to avoid conflict with the existing crossover.
The Tribunal found that, while relevant policies require that careful consideration be given to the impact of vehicle access arrangements on the streetscape, in this matter, the impact from the addition of an extra crossover to Rankin Road would not be so great as to overcome the inherently unsafe arrangement of having a vehicle reversing at right angles across an adjoining crossover.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr S Allerding (Acting as Agent)
Solicitors: (Page 3)
Respondent : Allerding & Associates
Case(s) referred to in decision(s):
Nil
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Dr Ray Heffer (applicant) filed with the Tribunal an application for review under s 252(1) of the Planning and Development Act 2005 (WA) against condition 9 of the City of Subiaco's (respondent or City) conditional approval of a residence with attached dental surgery. The site in this matter is No 329 Railway Road, corner of Rankin Road, Shenton Park (site).
Site and locality 2 The site is one of six lots fronting Railway Road, between Rankin Road in the south and Nicholson Road to the north. To the rear of these lots is a 5 metre wide bitumen paved right of way. The parties were unsure of the status of the right of way. A 1914 diagram of survey included in the respondent's bundle of documents appears to show the right of way may have been vested in the Crown on subdivision under the Transfer of Land Act 1893 (WA) for public use. It was common ground that the right of way was now available for public use. A 5 metre wide bitumen crossover extends from the right of way across the verge to the Rankin Road carriageway. For the purpose of this matter, the right of way and its crossover are together referred to as the right of way. 3 Rankin Road meets Railway Road at an angle so that the site has a front, western, boundary of about 20 metres to Railway Road and a rear, eastern, boundary of just 2.33 metres. This eastern boundary is about 3.8 metres from the alignment of the right of way. 4 In the space between the rear boundary of the site and the right of way, a bitumen crossover has been constructed parallel to the right of way, from Rankin Road to the eastern end of the side boundary of No 327 Railway Road (No 327), which adjoins the site. This crossover serves a covered carport, which is also open to the right of way, at the rear of No 327. The carport is attached to the front of a building that has the appearance of a garage with doors facing Rankin Road. The garage has a side parapet wall along the right of way. 5 There was evidence that this crossover was previously used to park a box trailer and that vehicles parking under the carport entered from the right of way at the rear. 6 The right of way and crossover to No 327 appear as one continuous expanse of bitumen, about 9 metres wide, on the verge of Rankin Road. (Page 5)
7 In early 2012, coinciding with the plans for the development of the site becoming public, a support pole for the carport was shifted and vehicles commenced using the crossover from Rankin Road to gain access to the carport. The use of the crossover to gain vehicle access to the carport at the rear at No 327 continues today.
The proposal 8 The plan of the approved development shows a double garage with doors set back 7.4 metres from the eastern boundary of the site, in front of which is shown a single staff parking bay. 9 The proposal before the Tribunal is to have approved, as applied for, a 6.5 metre wide paved vehicle access, which would include an area of the verge because the site tapers to 2.33 metres at the eastern boundary, extending parallel to Rankin Road from the garage to the crossover to No 327. A vehicle leaving the garage would reverse along the applicant's accessway, then pass at right angles across the crossover to No 327 to the right of way. The vehicle would then have to turn 90 degrees to travel along the right of way to the road network.
Condition in dispute 10 Condition 9 of the planning approval granted for the house and dental surgery on the site reads: The submission of a revised plan for the proposed crossovers associated with the development, with particular consideration to be given to the eastern crossover to the right of way to ensure that conflicts do not occur with the crossover to 327 Railway Road. Such plans are to be to the satisfaction of Manager Planning Services prior to the commencement of development. The development is to be completed in accordance with this revised plan.
Planning framework 11 The Residential Design Codes of Western Australia (2010) (Codes) include 'Design element 6.2 streetscape requirements'. The performance criteria for sight lines at vehicle access points state, at cl 6.2.6 P6, as follows: Walls or fences to primary or secondary streets, rightsofway or communal streets so that adequate sightlines are provided at vehicle access points. 12 Clause 6.5.4 P4 of the Codes sets out performance criteria for vehicular access, as follows: (Page 6)
Vehicular access provided so as to minimise the number of crossovers, avoid street trees, be safe in use and not detract from the streetscape. 13 The City's Residential Car Parking Local Planning Policy 3.7 (Policy 3.7) lists objectives at s 4, an order of acceptability of access arrangements for parking at s 6, and circumstances for variation to standards at s 8. Relevant provisions of Policy 3.7 are referred to in the discussion below.
Issues 14 The issues between the parties can be stated as: Discussion
Issue 1: Whether the proposed eastern crossover would be safe in use, with particular regard to when vehicles are exiting the site 15 The respondent called as a witness Mr Franz Winkler, an expert in road safety. When examined, Mr Winkler identified as a concern the height of the fence on the common boundary between the site and No 327. The fence would extend to the edge of the crossover between Rankin Road and the carport on No 327. Mr Winkler noted that it was proposed that vehicles entering and leaving the site would travel eastwest to enter the right of way at a right angle. This accessway would also be at right angles to the access between the carport on No 327 and Rankin Road; that is, the vehicles on the proposed accessway for the site would be travelling at right angles to vehicles travelling on the existing crossover to No 327. Mr Winkler was of the opinion that this would create the potential for right-angled collisions, particularly when drivers were reversing, as sight lines would be obstructed by fences or vegetation. Mr Winkler also remarked that visitors to No 327 currently park on the crossover between the carport and Rankin Road parallel to the right of way. The access proposed for the site would preclude this, forcing vehicles to park on Rankin Road, which, in his opinion, would contribute to potential collision hazards. (Page 7)
16 Mr Winkler's recommendation was that the eastern access to the site be via a separate crossover, direct to Rankin Road. His preference was that the crossover be parallel to, but separated from the crossover to No 327, by a marked but trafficable area. He considered there would be adequate sight lines in this access arrangement. 17 The applicant called as a witness Mr Paul Wellington in his capacity as an architect. It was Mr Wellington's submission that the location of the carport at the rear corner of No 327 meant there were adequate sight lines where the access to the site met the right of way. This would be consistent with the requirement in the Codes for adequate sight lines where an accessway met a street. The only potential for right-angled impacts was between cars exiting No 327 and cars exiting the site. In his opinion, reasonable use by drivers would avoid any potential collision. 18 The applicant suggested that the existing crossover be marked with yellow paint to signify 'no parking' to ensure that there would be no hindrance to vehicle movement to either property. 19 The Tribunal accepts that at the point where the applicant's proposed accessway would form a junction with the right of way, the current design of the carport on No 327 is such that there would be clear sight lines to detect any vehicle travelling within the right of way. The concern of the Tribunal is that the driver of a vehicle reversing eastward from the site, from the garage or from the sealed apron in front of the garage, would have the view of any vehicles in the carport obscured by a fence and vegetation. The reversing vehicle would be well across the crossover to No 327 before the driver was able to get a clear view. In addition, a vehicle reversing southward from the carport on No 327 would have the same difficulty when backing into the line of the proposed accessway between the garage on the site and the right of way. The proposed access arrangement requires a driver to reverse into a location where there is at least some potential for a collision. 20 The Tribunal has concluded that in respect to the first issue, the proposed eastern crossover between the site and the right of way would have potential to not be safe in use. The Tribunal considers this to be significant in determining whether the proposed eastern crossover might be allowed. (Page 8)
Issue 2: Whether the proposed crossover should be allowed, having regard to the policy requirements of the Codes and Policy 3.7 21 The respondent said there would not be adequate sight lines where vehicles exiting from the site entered the crossover to No 327. The respondent's submission was that the proposed access should not be allowed because it would not satisfy the requirement for adequate sight lines at cl 6.2.6 P6 of the Codes and would not be safe in use as required by cl 6.5.4 P4 of the Codes. 22 The applicant said the proposal satisfied the performance criteria at cl 6.2.6 of the Codes, arguing that there was an adequate sight line where the proposed accessway meets the right of way. 23 As stated above, the Tribunal accepts that where the proposed accessway meets the right of way, there is currently an adequate sight line. 24 The Tribunal would add that it is of the opinion that cl 6.2.6 P6 of the Codes, when read in the context of the purpose of Element 6.2 'streetscape requirements' of the Codes, is more appropriately applied to applications for development of walls and fences and how they would impact on streetscapes and sight lines. 25 The Tribunal is, however, of the view that the reference to sight lines at vehicle access points is an equally valid consideration in relation to the relationship between the proposed access from the site and the crossover to the carport on No 327. Where the fence on the common boundary ends at the edge of the crossover to No 327, there is no adequate sight line. 26 The applicant emphasised from cl 6.5.4 P4 of the Codes, the criteria of minimising the number of crossovers, avoiding street trees and not detracting from the streetscape. It was the submissions of both the applicant and Mr Wellington that to provide the proposed garage with its own crossover from Rankin Road, as suggested by the respondent, would not be minimising the number of crossovers, would necessitate the relocation of a street light and would result in at least a 15 metre wide expanse of bitumen. In Mr Wellington's opinion, the widening of the expanse of bitumen, which would include the right of way, the crossover to No 327 and the access to the proposed garage, and the reduction of the area of grassed verge would noticeably detract from the streetscape in a conflict with the performance criteria in cl 6.5.4 P4 of the Codes. (Page 9)
27 The applicant also said that, for the same reasons, the proposed accessway would be consistent with objective 4.1 of Policy 3.7, which was to assist in the development of attractive streetscapes. It was also argued that the proposal would satisfy objective 4.6, which refers to inappropriate crossovers and maximising street parking. 28 In support of the proposed eastern accessway, the applicant also referred to the preferred vehicle access arrangements at section 6.0 of Policy 3.7. At section 6.1 at the top of the list as most acceptable is parking at the rear of the dwelling with vehicle access via a right of way. The applicant pointed out that this would be achieved by the proposed access to the garage. Second on the list at section 6.2 of Policy 3.7 was access from the secondary street behind the dwelling. This was the access suggested by the respondent, but the applicant argued that the respondent's preference was in conflict with the objectives at 4.1 and 4.6 of Policy 3.7. 29 The applicant cited, with approval, four decisions handed down by the Tribunal in which the Tribunal supported the respondent's application of Policy 3.7. In those matters, the Tribunal supported the requirement that access to a garage be from a right of way and not be allowed via a crossover from the street. 30 The Tribunal would comment that those cases can be distinguished because the available vehicle access from the right of way did not intersect at right angles with the crossover between a neighbouring lot and the street. The safe in use concerns of the Codes identified in this matter did not arise. 31 The Tribunal accepts that a wide crossover arrangement would be an unattractive addition to the Rankin Street streetscape. However, Rankin Road is a secondary road for corner lots and it is not uncommon for such roads to have a utilitarian purpose. The Tribunal does not consider the impact on the streetscape overcomes the inherent danger in having intersecting crossovers. 32 Policy 3.7 includes, in section 8, instances where there might be allowed a variation to the acceptable standards. Clause 8.8 refers to a circumstance where a proposal is safer than the otherwise preferred parking location. Safety is a consideration in both Policy 3.7 and the Codes, and the Tribunal is of the view that the alternative access to parking suggested by the respondent would be safer than the applicant's preferred location for access to the garage. (Page 10)
Conclusion 33 The Tribunal has formed the view that the inherent danger, even if slight, in vehicles moving at right angles to each other on a shared crossover, is not a planning outcome to be supported, particularly in circumstances where it is unnecessary because alternative arrangements can be made. The proposed sharing of the crossover would also be complicated by a vehicle from either the site or from No 327 parking on the common accessway, blocking vehicle access to the respective residences. 34 Mr Wellington, for the applicant, pointed out that crossovers, being on the verge within a street reserve, were not for the exclusive use for any one household. Reference was made to the respondent's Local Laws Relating to Parking, which provide at cl 4.10(a) that a vehicle could not remain parked to deny reasonable access to a private driveway. The Tribunal is of the view that, notwithstanding the comparatively recently resumed use of the crossover by residents of No 327 for full time access, it must be considered a reasonable expectation and a likely occurrence that residents, and particularly visitors, to both the site and No 327, would want to make the usual unfettered use of the crossover to the respective properties. Commonly, this would include a vehicle standing on the crossover. 35 The Tribunal considers orderly and proper planning requires that each property have its own identifiable crossover. Recourse to yellow diagonal lines on crossovers and citing the respondent's Local Law Relating to Parking are considered by the Tribunal unusual solutions that might be impractical to enforce in a domestic situation. 36 The Tribunal finds that, while the Codes and Policy 3.7 require that careful consideration be given to the impact of vehicle access arrangements on the streetscape, the Codes and Policy 3.7 also provide for safety to be a consideration. In this matter, the impact from the addition of an extra crossover on the streetscape is considered by the Tribunal to not be so great as to overcome the inherently unsafe arrangement of having a vehicle reversing along one accessway at right angles across another accessway in circumstances where vision is obscured. 37 The applicant asked what might be required if Condition 9 is retained. The Tribunal would comment that a physical separation of a crossover to the site from the crossover to No 237 would appear not to be essential if vehicles are travelling parallel to each other. Other than that, it is suggested that the respondent consult with the designer to identify a (Page 11)
solution that would best suit it's needs, but avoids inherently unsafe access arrangements involving the intersection of crossovers. 38 The Tribunal has concluded that it would not be consistent with orderly and proper planning to support vehicle access arrangements that introduce real concerns about safety of vehicle movement. The Tribunal has therefore decided that the application for review should be dismissed.
Orders 1. The application for review is dismissed. 2. Condition 9 imposed by the City of Subiaco on its approval of the development on No 329 Railway Road, Shenton Park, dated 20 February 2012, is endorsed. |