Hughes and ANOR and Town Of Vincent
[2008] WASAT 60
•12 MARCH 2008
HUGHES & ANOR and TOWN OF VINCENT [2008] WASAT 60
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 60 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:366/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (MEMBER) | 11/03/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the Town of Vincent, dated 16 October 2007, to refuse the application for retrospective planning approval for a garage door is affirmed | ||
| B | |||
| PDF Version |
| Parties: | MARTIN HUGHES AUDREY HUGHES TOWN OF VINCENT |
Catchwords: | Town planning Development Refusal Application for retrospective approval Garage door addition to carport Carport in front setback Carport conversion to garage Garage at 1.0 metre setback Locality policy of maintaining streetscape Policy on setbacks for garages and carports |
Legislation: | Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 2.6 Town of Vincent Town Planning Scheme No 1, cl 19, cl 38 |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the Town of Vincent, dated 16 October 2007, to refuse the application for retrospective approval for a garage door at 161 Joel Terrace, is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HUGHES & ANOR and TOWN OF VINCENT [2008] WASAT 60 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 MARCH 2008 FILE NO/S : DR 366 of 2007 BETWEEN : MARTIN HUGHES
- AUDREY HUGHES
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development - Refusal - Application for retrospective approval - Garage door addition to carport - Carport in front setback - Carport conversion to garage - Garage at 1.0 metre setback - Locality policy of maintaining streetscape - Policy on setbacks for garages and carports
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 2.6
Town of Vincent Town Planning Scheme No 1, cl 19, cl 38
(Page 2)
Result:
The application for review is dismissed
The decision of the Town of Vincent, dated 16 October 2007, to refuse the application for retrospective planning approval for a garage door is affirmed
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Mr S Bain (Acting as Agent)
Solicitors:
Applicants : Self-represented
Respondent : SJB Planning and Urban Design (Town Planners)
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal by the Town of Vincent of an application for retrospective approval for the garage door addition to a carport at a 1.0 metre setback from the front boundary at 161 Joel Terrace, Mt Lawley.
2 The applicants said the garage door would provide security by preventing theft from, and damage to, their vehicles and access to a staircase at the front of their house. They were also of the view that the streetscape would not be compromised because of two garages of similar setback nearby, and because the door was designed and coloured to blend in with recent renovations to the house.
3 The State Administrative Tribunal noted the two examples of garages at reduced front setbacks nearby, but concluded they were exceptions in a street generally of consistent setbacks. The Tribunal concluded that a concession on the planning controls that require garages to be set back at the building line could not be supported in this instance because of the impact the garage, at the reduced setback, would have on the streetscape.
4 The application for review was dismissed.
Introduction
5 These proceedings involve an application brought by Martin Hughes and Audrey Hughes (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of Vincent (respondent or Council) to refuse an application for retrospective planning approval for the addition of a garage door to the double carport set back 1.0 metre from the front boundary at 161 Joel Terrace, Mt Lawley (site).
6 The Tribunal conducted a view of the site and neighbouring houses in the street in the presence of the applicants and the agent for the respondent.
Background
7 In February 2005, the respondent approved alterations and additions, including the double carport in the front setback, to the existing house on the site, subject to conditions which included:
(Page 4)
- "(v) The carport shall be one hundred (100) per cent open on all sides at all times (open type gates/panels are permitted), except where it abuts the main building wall."
8 The Council received a written complaint regarding the installation of an electronic roller door to the carport and in July 2007 wrote to the owners of the site requesting compliance with condition (v) of the approval.
9 In August of 2007, the applicants lodged an application for retrospective planning approval for the garage door addition. In October 2007, the respondent refused the application and this application for review was then filed.
Planning framework
10 The site is zoned "Residential" R20 under Town of Vincent Town Planning Scheme No 1 (TPS 1). Clause 38 of TPS 1 sets out matters it is necessary to have regard to when determining applications for planning approval, including:
" …
(b) any relevant planning policies;
…
(f) any submission accompanying or related to the application;
(g) the orderly and proper planning of the locality;
(h) conservation of the amenities of the locality;
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
11 Clause 19 of TPS 1 requires residential development to conform to the provisions of the Residential Design Codes of Western Australia (2002) (Codes). Clause 2.6 of the Codes provides that local planning policies may be prepared to deal with matters including primary and secondary street setbacks, development within the front setback and the siting of carports and garages.
(Page 5)
12 The respondent has adopted policies relevant to the locality and the site and included them in a policy manual. Policy No 3.1.15: Banks Precinct - Scheme Map 15 states that for residential areas development is to comply with the policies relating to the Council's Residential Design Guidelines (RDGs).
13 Under the RDGs' Locality Statements, the respondent has adopted Policy No 3.3.30: Riverside - Locality Plan 30 (Riverside Locality Policy), which states that "[n]ew contemporary developments are encouraged provided that the design responds to the established character".
14 Under the RDGs' Design Elements, the respondent has adopted Policy No 3.2.4: Street Setbacks (Setback Policy), which states at cl 6:
"For the purposes of the Planning and Building Policies, 'carport' means a roofed structure designed to accommodate one or more motor vehicles unenclosed except to the extent it abuts the existing dwelling and/or a property boundary on one side, and being without a doors [sic] or panels unless these doors and/or panels are visually permeable such as with open grilles.
Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles, including open sided carports with solid doors, is deemed to be a 'garage'.
…
All garages are required to be setback at 6.0 metres from the frontage street, or at or behind the line of the front main building wall (not open verandah, porch, portico, balcony and the like) of the nearest dwelling on the site, to preserve and possibly enhance the streetscape."
15 The Setback Policy includes a table of performance criteria and acceptable development with the aim:
"To setback buildings, parapet walls and carports/garages from the street to provide security, adequate space for privacy, open space and access for people and vehicles, to ensure consistent and attractive streetscapes, and enhance security for both occupants and passersby."
16 It states, under the heading "Performance Criteria":
(Page 6)
- "P2 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."
17 Under the heading "Acceptable Development", the relevant standard is:
"A2.4 Garages setback at 6.0 metres from the frontage street, or behind the line of the front main building wall (not open verandah, porch, portico, balcony and the like) of the nearest dwelling on the site."
The site and locality
18 The site has an area of 491 square metres and a frontage of 12.2 metres at the western side of Joel Terrace. On the site is a two storey single house with, at the rear, a pool and a single garage with access from the rear right of way. At the front of the house, adjacent to the southern boundary, is a double carport approved as part of the 2005 additions which is 6.0 metres wide and set back 1.0 metre from the front boundary. At the south-west rear corner of the carport, stairs ascend to the deck at the front of the living room of the house. The lot rises from Joel Terrace and the floor of the carport is shown on the sketches at RL 8.37. The ground floor living room behind is at RL 10. Photographs provided show the carport roof at a level about a third of the way up the French doors of the living area.
19 In the vicinity of the site, single houses on the western side of Joel Terrace are set back at about 8.0 metres. On the eastern side is a mix of older and newer houses at varying setbacks, some closer to the road than 8.0 metres. Two houses, referred to below, have garages close to the road.
The development
20 The applicant describes the development as a remotely controlled "sectional garage door". The garage door covers the full 5.6 metre width of the carport. It is completely opaque and is the same dark charcoal grey colour as the frame of the carport, the metal balustrades of the deck and balcony and the French door trims on the house.
The refusal
21 The respondent refused to grant approval to the garage door addition for the reasons:
(Page 7)
- "(i) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality; and
(ii) the carport door will result in the front carport being a garage, and the front garage does not comply with the Town's Policy No. 3.2.4 relating to Street Setbacks, which requires garages to be set back at 6 metres from a frontage street or behind the line of the front main building wall."
The issue
22 The Tribunal finds that the issue in this matter is whether the policy requirements for garages can be relaxed and the garage door addition allowed at the reduced setback of 1.0 metre in this streetscape.
Discussion of the issue
23 The Tribunal would state at the outset that policies are not to be applied inflexibly, regardless of the particular merits of a proposal. Policy cannot displace discretion available to the decision-maker. It must be said, however, that where policies have been properly adopted, as in this instance, it becomes a question of why the policies should not be applied. That is, why the planning principles expressed in the policy might be relaxed in the circumstances of the particular application.
24 The applicants said they believed the Council was simply imposing a blanket decision which could not have been based on a visual and practical examination of the entire streetscape. To support their submission they referred to, provided photographs of, and pointed out during the viewing of the site, garage doors set back at about the same distance diagonally opposite at No 142 and No 144 Joel Terrace, and a 1.8 metre high brick wall across half the frontage of No 149 Joel Terrace, screening a carport within the front setback. The applicants said these examples showed that development had been allowed similar to that proposed by them and that there was no adverse effect on the streetscape.
25 The applicants further argued that the garage door would not compromise the streetscape. The garage door was, in their view, attractive, a colour consultant having been engaged so that the door would blend in with the recent additions to the house. They considered that the door was set back far enough to not be intrusive in the street. It was pointed out that the neighbour at 159 Joel Terrace had no objection. The
(Page 8)
- applicants believed the alternative suggestion of a sectional grilled door would be unappealing to the eye, and would allow litter and leaves into the garage.
26 The applicants explained that they installed the garage door to provide security and protection. They said their vehicles parked in the carport had been vandalised on more than one occasion, the most recent being the destruction of the wiper assemblies and several thousands of dollars of tree cutting equipment had been stolen from one of the vehicles. These acts were said to have been reported to the police. The garage door would also prevent access to stairs which rise from the rear corner of the carport to the terrace in front of the living areas. The applicants were of the opinion that they needed additional security because Joel Terrace was a main road and they lived in the vicinity of a large hospital, the river foreshore, Banks Reserve and flats.
27 The Tribunal accepts that their vehicles have been damaged and they have had possessions stolen from them. No evidence was provided, however, that could lead the Tribunal to make any connection between the criminal activities at the applicants' house and the various surrounding land uses. The respondent made no submissions on the applicants' claims that the garage door was needed for security and protection.
28 Mr Bain, for the respondent, restated that when considering development proposals TPS 1 required that regard be had to the relevant policies. He said the development would not be consistent with the Riverside Locality Policy objectives of having development respect elements of established local character and the streetscape, such as setbacks. Mr Bain said that the standard front setback in the locality was 8.45 metres. The adjoining houses were said to be respectively set back 8.45 metres and 9.5 metres. The proposed 1.0 metre setback was said by Mr Bain to be clearly contrary to the pattern of development in the locality and this also made the development contrary to the performance criteria of the Streetscape Policy.
29 Mr Bain said that the proposed development would also contravene the acceptable development standard of the Setback Policy because the garage would not be set back 6 metres or be behind the main building line. His explanation for the two garages on the eastern side of Joel Terrace forward the building line was that those lots sloped steeply down to the river and so there were constraints on where garages could be located.
(Page 9)
30 Mr Bain argued that the two existing garages near a front boundary did not establish a precedent for the proposed development because they were only two of some 180 properties in the locality. He did not identify what he saw as the locality and it is apparent to the Tribunal that it would be necessary to look well beyond the immediate streetscape of the site to determine the setbacks of this number of houses.
31 The Tribunal notes that the Streetscape Policy performance criteria essentially restate the objectives of the Riverside Locality Policy. That is, new development should be consistent with the development pattern in the locality.
32 At a setback of 1.0 metre, the Tribunal does not consider the resultant garage development would be consistent with the local pattern of development. The view conducted of the streetscape in the vicinity of the site revealed that the only readily apparent variations to the policy were the two garages and the 1.8 metre brick front wall referred to by the applicants. The Tribunal does not consider that these three examples determine the character of the streetscape, but might more readily be characterised as intrusions into the established streetscape. The Tribunal notes that the garage door would be in harmony with the colour of the house, but considers that the 6.0 metre wide and 2.59 metre high garage door set back 1.0 metre from the front boundary would also be an intrusion into the established streetscape.
33 The Tribunal appreciates the applicants' concerns to secure their vehicles. The Tribunal is not persuaded that the planning controls in place should be set aside to achieve this objective. There are alternatives available to secure the vehicles, even though the applicants believe these to be a less aesthetic outcome than their proposed garage door.
34 Precedent was mentioned by both the applicants and the respondent. The applicants said the two other examples of garage doors near the front boundary supported their application; the respondent said these were not sufficient to be considered a precedent. The Tribunal is of the view that precedent is a consideration in this matter, but not for the reasons identified by the applicants. The site is in a street with older houses which were not initially built with a garage, and where additions to existing houses and redevelopment of the narrow lots common to the locality could be more easily accommodated with the garage in the front setback. It is a concern that there is more than a mere chance or possibility that neighbours will seek to lodge similar applications in circumstances where the current proposal is indistinguishable. Precedent is therefore a
(Page 10)
- consideration where an approval would be inconsistent with achieving the policy objectives for the locality.
Conclusion
35 The applicants said, and it is not doubted, they acted in good faith, believing they were following guidelines. They believe their garage door is a pleasant and acceptable addition to the streetscape and, importantly for them, provides security for their vehicles.
36 The submissions made by the applicant in support of the proposed garage door are understood, but the Tribunal has concluded in the circumstances that it would not be consistent with the orderly and proper planning of the locality to relax the established policy objectives of maintaining the established streetscape.
37 The Tribunal has therefore decided to dismiss the application.
Orders
1. The application for review is dismissed.
2. The decision of the Town of Vincent, dated 16 October 2007, to refuse the application for retrospective approval for a garage door at 161 Joel Terrace, is affirmed.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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