Jones and City of Vincent
[2017] WASAT 49
•11 APRIL 2017
JONES and CITY OF VINCENT [2017] WASAT 49
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 49 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:232/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS R PETRUCCI (MEMBER) | 11/04/17 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of respondent to refuse retrospective development approval to add carport to existing dwelling at 96 Sasse Avenue, Mount Hawthorn affirmed | ||
| B | |||
| PDF Version |
| Parties: | SHAYNE JONES CITY OF VINCENT |
Catchwords: | Town Planning Development Refusal Application for retrospective approval Whether carport added to existing single dwelling should be approved under local planning scheme Assessment table Roof form DeemedtoComply Criteria Design Solution Orderly and proper planning Amenity of streetscape Undesirable precedent |
Legislation: | City of Vincent Town Planning Scheme No 1, cl 6(3) City of Vincent Town Planning Scheme No 2 Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), Sch 2, cl 1, cl 4(4), cl 67(b), cl 67(m) Planning and Development Act 2005 (WA), s 241, s 252, s 257B, s 257B(3) State Administrative Tribunal Act 2004 (WA), s 60(2) State Planning Policy 3.1 - Residential Design Codes, Pt 2.6 |
Case References: | Nicholls and Western Australian Planning Commission [2005] WASAT 40 |
Orders | 1. The application for review is dismissed.,2. The decision of the City of Vincent dated 6 July 2016 to refuse the application to add a carport to the existing single house at 96 Sasse Avenue, Mount Hawthorn, is affirmed. |
Summary | This matter involved an application for review of the refusal (retrospective) of a development proposal to add a carport to the existing single dwelling at 96 Sasse Avenue, Mount Hawthorn. The respondent refused the application on the basis that the carport did not comply with various policies, it did not complement the streetscape and the development was not consistent with orderly and proper planning and the preservation of the amenity of the locality.,The applicant refuted the respondent's reasons. The applicant asserted the carport is integrated into the existing dwelling, is constructed of compatible materials, colours, scale and roof pitch. Further, in the applicant's view, the carport complements the streetscape and the carport has not set a precedent as there exists a trend for 'low pitched roof' carports in Sasse Avenue.,The Tribunal concluded that the carport did not satisfy any relevant Deemed-to-Comply provisions of the relevant policies to warrant approval. Further, the Tribunal found that the carport was in conflict with the local design criteria for carports and detracted from the streetscape. Finally, the Tribunal determined that the development would be in conflict with the objective of conserving the amenity of the locality and would not be consistent with orderly and proper planning.,The Tribunal dismissed the application for review. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JONES and CITY OF VINCENT [2017] WASAT 49 MEMBER : MS R PETRUCCI (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 11 APRIL 2017 FILE NO/S : DR 232 of 2016 BETWEEN : SHAYNE JONES
- Applicant
AND
CITY OF VINCENT
Respondent
Catchwords:
Town Planning Development Refusal Application for retrospective approval Whether carport added to existing single dwelling should be approved under local planning scheme Assessment table Roof form DeemedtoComply Criteria Design Solution Orderly and proper planning Amenity of streetscape Undesirable precedent
Legislation:
City of Vincent Town Planning Scheme No 1, cl 6(3)
City of Vincent Town Planning Scheme No 2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), Sch 2, cl 1, cl 4(4), cl 67(b), cl 67(m)
Planning and Development Act 2005 (WA), s 241, s 252, s 257B, s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Planning Policy 3.1 - Residential Design Codes, Pt 2.6
Result:
Application for review dismissed
Decision of respondent to refuse retrospective development approval to add carport to existing dwelling at 96 Sasse Avenue, Mount Hawthorn affirmed
Summary of Tribunal's decision:
This matter involved an application for review of the refusal (retrospective) of a development proposal to add a carport to the existing single dwelling at 96 Sasse Avenue, Mount Hawthorn. The respondent refused the application on the basis that the carport did not comply with various policies, it did not complement the streetscape and the development was not consistent with orderly and proper planning and the preservation of the amenity of the locality.
The applicant refuted the respondent's reasons. The applicant asserted the carport is integrated into the existing dwelling, is constructed of compatible materials, colours, scale and roof pitch. Further, in the applicant's view, the carport complements the streetscape and the carport has not set a precedent as there exists a trend for 'low pitched roof' carports in Sasse Avenue.
The Tribunal concluded that the carport did not satisfy any relevant Deemed-to-Comply provisions of the relevant policies to warrant approval. Further, the Tribunal found that the carport was in conflict with the local design criteria for carports and detracted from the streetscape. Finally, the Tribunal determined that the development would be in conflict with the objective of conserving the amenity of the locality and would not be consistent with orderly and proper planning.
The Tribunal dismissed the application for review.
Category: B
Representation:
Counsel:
Applicant : Self Represented
Respondent : Mr G Hajigabriel (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Rowe Group (Town Planners)
Case(s) referred to in decision(s):
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Background
1 This is an application for review of the decision of the City of Vincent (respondent) to refuse Mr Jones' (applicant) application received on 5 November 2015 for retrospective development approval to add a carport at an approximate cost of $1,300 to the existing single dwelling at 96 Sasse Avenue, Mount Hawthorn (Sasse Avenue), being more particularly described as Lot 137 on Plan 2099 Volume 1820 Folio 992 (site).
2 On 29 July 2016, the applicant lodged his application with the Tribunal seeking a review of the respondent's decision.
3 The matter was referred to an onsite mediation for 29 August 2016. The mediation was not successful and the matter was programmed for a directions hearing on 20 October 2016 where orders were made for the parties to submit documents they wished to rely on. The Tribunal ordered that the matter to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
4 On 13 December 2016, orders allowing the respondent to file with the Tribunal and give to the applicant a response to the applicant's witness statement were made, and on 12 January 2017, further orders were made allowing both parties to file with the Tribunal and give to the other party, any additional written submissions they wished to make by 30 January 2017.
Facts
5 The site is zoned 'Urban' under the Metropolitan Region Scheme and is located within the City of Vincent with a 'Residential' zoning and a density coding of R30 under the City of Vincent Town Planning Scheme No 2 (gazetted on 18 November 2014) (TPS 2).
6 The plan for the carport submitted by the applicant to respondent depicts a flat roof form that is to be constructed of corrugated steel cladding.
7 The respondent advertised the development for public consultation commencing on 24 November 2015 for a period of two weeks. Notifications were sent to the owners and occupiers of the eight dwellings located immediately north, east, south and west of the site. No submissions were received during the public consultation period.
8 On 7 December 2015, the respondent requested the applicant provide amended plans which where to show a roof form to match that of the existing dwelling. Further, on 7 December 2015, the respondent wrote to the applicant stating, among other things, the carport had been constructed without planning or building approval and that it had a flat roof whereas the dwelling had a pitched roof which was not in accordance with the DeemedtoComply Criteria of BDADC 3 set out in Element Two - Building Design of the Assessment Table in the City of VincentPlanning and Building Manual Residential Development Policy No 7.2.1 Residential Design Elements (LPP 7.2.1). In addition, the respondent requested further information from the applicant including amended plans.
9 On 9 December 2015, the applicant replied to the respondent setting out the following five reasons why, in his view, the application met the requirements of BDADC 3:
a) the proposed roof pitch of the carport matches with a portion of that of the existing dwelling;
b) the carport will be painted to match the colour scheme of the existing dwelling;
c) the neighbours affected by the installation do not oppose the installation;
d) there are multiple installations of similar carports with flat roofs within the direct vicinity of the existing dwelling; and
e) the proposed roof pitch is appropriate for the intended use.
10 Following further consideration, the respondent wrote to the applicant on 22 January 2016 to advise that the applicant's proposal for a flat roof carport did not comply with the DeemedtoComply Criteria SADC 8(c)(1) set out in Element One Streetscape of the Assessment Table in LPP 7.2.1 because:
Garages and carports should be integrated into the development, and should be constructed of compatible materials, colours, scale and roof pitch to the dwellings on site
- and therefore, the respondent was required to assess the roof form in accordance with the Design Solution set out in SPC 8 of the Assessment Table in LPP 7.2.1 which provides:
(i) Garages and carports are not to visually dominate the site or the streetscape.
12 No amended plans were submitted by the applicant.
13 On 14 May 2016, the respondent advised the applicant that his application would be considered as a retrospective application.
14 On 6 July 2016, the respondent assessed the application not to be in accordance with the provisions of the City of VincentTown Planning Scheme No 1 (TPS 1 or Scheme) and associated policies. In making its decision the respondent advised the applicant it refused his application for the following four reasons:
a) non-compliance with the DeemedtoComply Criteria SADC 8(c)(1) of LPP 7.2.1 that '[g]arages and carports should be integrated into the development, and should be constructed of compatible materials, colours, scale and roof pitch to the dwellings on site';
b) non-compliance with the DeemedtoComply Criteria BDADC 3(a) of LPP 7.2.1 relating to roof forms;
c) the development does not complement the streetscape and has resulted in a negative impact on Sasse Avenue; and
d) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality.
15 Finally, the respondent required the applicant to remove the carport within 28 days. This was not done. However, the respondent agreed that while the matter was before the Tribunal it would not require the applicant to remove the carport at the site.
Issue
16 The sole issue to be determined is whether the development application for the carport added to the existing single dwelling at Sasse Avenue should be approved (retrospectively).
17 This issue raises the following planning questions which the Tribunal will address in its consideration of the issue:
a) Is the carport, as constructed, contrary to the orderly and proper planning of the locality?
b) Does the carport, as constructed, adversely affect the amenity of the streetscape?
c) Does the carport, as constructed, create an undesirable precedent in the locality?
Applicant's position
18 The applicant refutes all of the respondent's contentions. He asserted that his carport does not unduly increase the bulk of his dwelling, that there already exists along Sasse Avenue a streetscape which includes carports with flat roofs and the view of his neighbours is that the existing streetscape is complemented by his carport.
Respondent's position
19 The respondent contends that the applicant's carport does not comply with DeemedtoComply Criteria SADC 8(c)(1) and BDADC 3(a) of LPP 7.2.1, it does not complement the streetscape and has resulted in a negative impact on Sasse Avenue, and the carport is not consistent with the orderly and proper planning and the preservation of the amenity of the locality.
Legislative and policy framework
20 The legislation and policy relevant to this issue are contained in the following:
a) Planning and Development Act 2005 (WA) (PD Act);
b) Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations);
c) State Planning Policy 3.1 Residential Design Codes (RCodes);
d) TPS 1;
e) TPS 2;
f) City of Vincent Local Planning Strategy (18 November 2014);
g) LPP 7.2.1; and
h) City of VincentPlanning and Building Policy Manual Policy No 7.1.1 Built Form (13 December 2016).
21 Section 252 of the PD Act enables a person to seek a review by the Tribunal of a decision made under a local planning scheme to refuse an application for development. Further, s 241 of the PD Act requires the Tribunal, in determining the application for review, to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application.
22 Section 257B of the PD Act provides that the deemed provisions (refer to reg 10(4) and Sch 2 of the Regulations) have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force. Section 257B(3) provides that if a deemed provision, that has effect as part of a local planning scheme, is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
23 TPS 1 was gazetted on 4 December 1998. It covers all the municipal district of the Town of Vincent which includes Sasse Avenue.
24 The purpose of TPS 1 is reported to be for the purpose of controlling and guiding development and growth in a responsible manner and which can initiate, accommodate and respond to change. The general objectives of TPS 1 are set out in cl 6(3). They are:
(a) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;
(b) to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment;
(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 zone area; and
(ii) can respond readily to change;
(d) to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities;
(e) to promote and safeguard the economic wellbeing and functions of the Town;
(f) to co-ordinate and ensure that development is carried out in an efficient and environmentally responsible manner which -
(i) makes optimum use of the Town’s growing infrastructure and resources;
(ii) promotes an energy efficient environment; and
(iii) respects the natural environment;
(g) to promote and safeguard the cultural heritage of the Town by -
(i) identifying, conserving and enhancing those places which are of significance to Vincent's cultural heritage;
(ii) encouraging development that is in harmony with the cultural heritage value of an area; and
(iii) promoting public awareness of cultural heritage generally; and
(h) to ensure planning at the local level is consistent with the Metropolitan Region Scheme.
25 LPP 7.2.1 was adopted by the Council of the respondent on 18 December 2007. It was most recently amended on 26 July 2016. In the introduction to LPP 7.2.1 it is written that the policy was developed for the purpose of preserving and maintaining the residential amenity, while still allowing new development to occur. Further, the introduction states that the policy was constructed to function as a tool that will assist in protecting the existing character of residential areas while at the same time allowing for new development to occur in a balanced manner.
26 Clause 3 of LPP 7.2.1 states that all residential development is required to comply with LPP 7.2.1 in addition to TPS 1. It also states the City of Vincent and intending developers are obliged to take into consideration the policy (as set out in LPP 7.2.1) though notes variations and departures are possible, however they need to be justified.
27 The aims of LPP 7.2.1 as far as they are relevant to this matter are:
• to encourage residential development that harmonises with the existing streetscape and complements the character of the locality;
• to manage residential development in a way that recognises the needs of innovative design and contemporary lifestyles;
• to encourage a diversity in housing styles, while facilitating new residential development that complements the character of the street; and
• to provide a comprehensive set of residential design guidelines that reflects the values of the wider community and a transparent assessment process.
28 TPS 2 was adopted by the Council of the respondent on 18 November 2014. It is awaiting the Minister for Planning's approval. TPS 2 is to be given due regard in accordance with cl 67(b) of Sch 2 of the Regulations. The objectives of TPS2 are similar to those of TPS1 and are set out in cl 1.6.
29 The R-Codes form part of TPS 1 and TPS 2. The RCodes are the main tool for controlling residential development in Western Australia. While the RCodes are very comprehensive, they also recognise that by their very nature, they cannot cater for specific differences that may exist from one local authority to another. Consequently, the RCodes allow for variations to some of the provisions where there may be a different or unique local context in terms of residential development. In this regard, Part 2.6 of the RCodes allows the Council of the respondent to prepare local planning policies for streetscape, building design, boundary walls and building height that provides alternative requirements to the RCodes to suit the local planning context.
30 The Tribunal notes that at cl 4.2 of LPP 7.2.1 it is written that its policy in LPP 7.2.1 endeavours to complement the RCodes by augmenting and further developing specific provisions with more specific policy measures pertinent to residential development with the City of Vincent and that if there is any inconsistency with the RCodes and LPP 7.2.1, the provisions of LPP 7.2.1 override the RCodes.
31 Similar to TPS 2, the City of Vincent Local Planning Strategy (18 November 2014) (LPS) was adopted by the Council of the respondent on 18 November 2014. It is also awaiting the Minister for Planning's approval. Therefore like TPS 2, the LPS is to be given due regard in accordance with cl 67(b) of Sch 2 of the Regulations. According to the preamble to the LPS it is the principal document for outlining and communicating the future land use planning of the City of Vincent and is to be used by all stakeholders including City of Vincent officers and landowners.
32 The objectives of the LPS which are set out in cl 1.2 and are relevant to this matter are:
…
(d) [To] [a]chieve quality urban design outcomes for public and private areas that provide the City with high levels of amenity.
(e) To cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range and variety and choice in housing to support the changing social needs of the community; including the ageing population and affordability.
…
(g) To ensure planning at the local level is consistent with the Metropolitan Region Scheme and State Planning Policy[.]
33 On 20 September 2016, the Council of the respondent resolved to adopt the City of Vincent Planning and Building Policy Manual Policy 7.1.1 – Built Form (13 December 2016) (LPP 7.1.1) for the purpose of advertising it for public comment. It was advertised between 11 October 2016 and 11 November 2016. Finally, at an ordinary meeting of the Council of the respondent, LPP 7.1.1 was adopted. Mr Hajigabriel stated that once publication of a notice of adoption within an applicable newspaper is made (per cl 4(4) of Sch 2 of the Regulations) LPP 7.2.1 will be rescinded.
34 The applicant argued that LPP 7.1.1 does not apply in this case as he had submitted his application to the respondent some 11 months before LPP 7.1.1 was released for public comment.
35 The applicant's argument is misconceived. Like TPS 2 and LPS, LPP 7.1.1 is to be given due regard as required by cl 67(b) of Sch 2 of the Regulations.
36 There are 14 policy objectives set out in LPP 7.1.1. Relevant to this matter are the following objectives:
1. Development which integrates land use, public space and the form of the built environment.
2. Ensure development is respectful of local and historical context.
3. Preserve and reinterpret established built form and social character.
4. Facilitate redevelopment while maintaining and enhancing amenity.
5. To facilitate good quality and welldesigned development, including both buildings and landscaping.
Evidence
37 The applicant is a certified practising project practitioner and is currently employed as a senior project engineer. He provided his witness statement dated 2 December 2016. This was in addition to his statement attached to his application to the Tribunal. Finally, he provided a second witness statement dated 30 January 2017.
38 Mr George Hajigabriel is a town planning and project management consultant employed by Rowe Group. He provided a witness statement for the respondent dated 18 November 2016. Further, Mr Hajigabriel provided a responsive witness statement dated 11 January 2017.
Consideration
39 The Tribunal considered the respective positon of each party, the relevant legislative and policy provisions as well as matters of streetscape, orderly and proper planning, amenity and precedent.
Streetscape
40 The applicant stated the reasons given by the respondent are subjective and not based on any published material. The applicant submitted that the neighbours along Sasse Avenue do not have any issues with his carport and that they do not believe the carport negatively impacts on the streetscape. Further, the applicant stated that within a two kilometre radius of his residence on Sasse Avenue, there are 51 dwellings with a carport which have 'a low pitched roof', eight of which are located on Sasse Avenue.
41 Further, the applicant noted that specifically on Sasse Avenue there are about 95 properties of which about 20% have a carport. And of those 95 properties, 21 properties have a carport separate from the dwelling; and of those 21 properties, eight (or about 40%) have 'a flat roof' like his carport.
42 In addition, the applicant asserted that the respondent is incorrect to suggest the carport is the dominant feature of his property. This is because, according to the applicant, standing at the front on his property, the area of a rectangle with height bound by the top of the carport (2.4m²) across the full width of the property (12.03m²) comes to 28.87m². Of this area, the carport is 1.37m² or 4.75% of the total area and if the height of the rectangle increases to include the full height of the dwelling, the percentage of 4.75% for the carport will decrease. Further, the applicant stated that the respondent's statement that the bathroom ensuite (which was formerly a carport) of just under 25% of the frontage area is not sufficient to justify approving 'a flat pitched roof' for the carport contradicts its statement that the carport (or 4.75% of the total area) dominates the area.
43 The applicant asserted that other than looking at the carport front on, it is barely visible looking north or south down Sasse Avenue due to the presence of trees on the street verge. According to the applicant, this is supported by photographs provided to the Tribunal by the respondent, that his carport is barely visible through the trees on the street verge.
44 Finally, the applicant said that, in any event, the carport constructed at 98 Sasse Avenue (being immediately north of his dwelling) blocks the view of his carport from the north.
45 According to Mr Hajigabriel (for the respondent) the Sasse Avenue streetscape is characterised by single residential dwellings which incorporate pitched tile roofs. He stated the applicant's dwelling incorporates a pitched tile roof and a 2.2m² wide flat roofed addition to the existing dwelling which abuts the northern boundary. However, according to Mr Hajigabriel, the applicant's flat roof addition (the bathroom ensuite) is not of such a scale to justify the roof form of the carport.
46 In Mr Hajigabriel's view, the flat roof carport fully obstructs the view of the flat roofed addition (the bathroom ensuite) to the dwelling. Because of this, Mr Hajigabriel stated that the obscured view together with the minor nature (about 16% of the frontage of the site) of the flat roof addition cannot be considered as the dominant, prevailing or predominant development form.
47 Further, Mr Hajigabriel stated the carport does not display architectural design or form which is complementary to the existing dwelling and the carport does not display innovative or contemporary design. Finally, in Mr Hajigabriel's view, the carport detracts from the desired residential development outcomes which have been developed, where the approval of the carport will undermine the application of LPP 7.2.1. and LPP 7.1.1.
48 When viewed front on from Sasse Avenue it is clear from the photographs provided to the Tribunal that the carport has a flat roof carport that fully obstructs the view of the flat roofed addition (the bathroom ensuite) to the dwelling. The Tribunal agrees with the respondent that the carport detracts from the Sasse Avenue streetscape which generally comprises 1970s building stock. There is little doubt that if the development is approved, the carport will introduce into the Sasse Avenue streetscape a flat roof constructed of metal sheeting and supported by four metal columns which has not been incorporated into the existing dwelling.
Amenity
49 Under cl 1 of Sch 2 of the Regulations, 'amenity' is defined as:
all those factors which combine to form the character of an area and include the present and likely future amenity[.]
50 In this matter, the applicant stated that none of his neighbours on Sasse Avenue responded in a negative way to the carport during the public consultation period and subsequent to its construction.
51 Mr Hajigabriel's view is that the carport is not harmonious with the streetscape of Sasse Avenue and is not in keeping with the character of similar recently developed, and encouraged structures and therefore detracts from the amenity of the locality.
52 Bearing in mind the definition of amenity (set out above), the Tribunal is of the view that the amenity of the streetscape could, with similar flat roof carport developments in Sasse Avenue, be adversely affected over time.
Orderly and proper planning
53 The applicant argued that the DeemedtoComply Criteria SADC 8(c)(1) of LPP.7.2.1 does not specify the amount by which the existing dwelling must contain compatible materials, colours, scale or roof pitch. The applicant gave the example that it is not clear whether the existing dwelling must contain greater than say 50% of matching criteria, only that they must occur in the existing dwelling.
54 The applicant asserted that an area equivalent to 26% of his dwelling contains compatible materials therefore that is enough to meet part of the DeemedtoComply Criteria SADC 8(c)(1). Further, the applicant stated that the carport was painted to match the colour of the existing dwelling.
55 Further, in support of his view that his carport meets the requirements of the DeemedtoComply Criteria SADC 8(c)(1), the applicant referred to the carport at 52 Federation Street, Mount Hawthorn which he stated, in his view, did not meet any of the four criteria (compatible materials, colours, scale and roof pitch).
56 The applicant referred to the following from page 5 of LPP 7.2.1:
The 'Deemed-to-Comply Criteria' in the Assessment Table, provide a means by which development can be 'deemed to comply' with the relevant Design Solution and therefore provide a speedy and certain path to approval[;]
- and said that the respondent agreed with his understanding that a proposal which satisfies the DeemedtoComply Criteria in the Assessment Table is regarded as complying with the associated Design Solution which is set out in LPP 7.2.1 as follows:
The 'Design Solution' in the Assessment Table also outline the provisions that are to be satisfied in order to achieve the desired development outcome. The Design Solution details both prescriptive and performance based provisions. The City will assess the development proposal against these criteria when assessing and determining an application.
58 The applicant also asserted that each of the criteria in the DeemedtoComply Criteria in BDPC 3(a) in the Assessment Table of LPP 7.2.1 are satisfied. The applicant submitted that the roof of the carport does not unduly increase the bulk of the building, that there already exists along Sasse Avenue, a streetscape which includes carports with 'flat pitched roofs', and the view of his neighbours is that the existing streetscape is complemented by his carport. Finally, the applicant asserted the location of the carport does not throw shadows onto adjoining properties.
59 The Deemed-to-Comply Criteria for BDPC 3(a) provides that the roof room is to be achieved through:
• The use of appropriate materials, colour and roof pitch;
• The use of roof pitches between 30 degrees and 45 degrees (inclusive) being encouraged; and
• The use of lower pitched roofs where they are compatible with existing development and streetscape.
60 The applicant stated that the second dot point does not expressly state that a pitched roof is a 'requirement', rather it is 'encouraged'.
61 In addition, the applicant stated that a further reason for a 'low pitched roof' on his carport is that the power cable feeding power to the existing dwelling traverses across the area where the carport stands. He noted a pitched roof would clash with this cable, making a carport constructed with a pitched roof unsafe with the potential to become 'live' should the cable short and come into contact with the infrastructure. Therefore, according to the applicant, the use of a 'lower pitched roof' is Deemed-to-Comply as it is compatible with the existing development and streetscape, as a higher pitched roof would be incompatible.
62 The applicant stated that the carports at 52 Federation Street, Mount Hawthorn, 80 Federation Street, Mount Hawthorn and 92 Ellesmere Street, North Perth all have a flat or low pitched roof and they were approved by the respondent. Further, the applicant noted that the house and carport at 131 Matlock Street, Mount Hawthorn was constructed post 2014 and received approval from the respondent. The applicant asserted that the carport at each of these locations is not constructed with compatible materials to the existing dwelling, the colour does not match the existing dwelling, the scale of the carport does not match that of the existing dwelling, and the roof pitch does not match the existing dwelling as each of the carports has a 'flat pitched roof'.
63 In response Mr Hajigabriel stated that the locality is generally comprised of older 1970s building stock which is being progressively upgraded or replaced and that other renovations/additions to existing dwellings and the construction of new dwellings are being undertaken in a manner that incorporates the principles in LPP 7.2.1 and LPP 7.1.1 in respect of carports.
64 Mr Hajigabriel asserted that the approval of a flat roofed, sheet metal carport would be contrary to the character of development in Sasse Avenue locality, which assists in developing a sense of local community.
65 Further, Mr Hajigabriel stated that consideration must be given to the compatibility of the applicant's carport with the development on adjoining land as required by cl 67(m) of the Regulations. The carport at 98 Sasse Avenue is of brick and tile, has a roof pitch, and colour scheme which complements the existing dwelling.
66 In addition, Mr Hajigabriel stated that, in view of the relatively minor nature of the applicant's carport, the developments which he considered relevant to the consideration of the application were those immediately adjacent with pitched carports of a design compatible with the associated dwellings. In that regard, Mr Hajigabriel noted various dwellings with frontage to Sasse Avenue, particularly Nos 94, 92, 90, 88 and 86 have carports designs that are integrated into the dwelling through built form, scale, colours and materials and are seamlessly incorporated into the Sasse Avenue streetscape, assisting in improving amenity while complying with the policy aims and streetscape objectives of LPP 7.2.1 and LPP 7.1.1.
67 Mr Hajigabriel referred to the Deemed-to-Comply Criteria at cl 5.7 of LPP 7.1.1 'Setback of Garages and Carports' which provides:
C5.7.4 Garages and carports must match the existing dwellings predominant colour, scale and materials and must be complementary and subservient to the dwelling.
68 Mr Hajigabriel submitted that the carport does not meet the above for reasons including:
• the architectural form or style is not sensitive to, or in keeping with, the existing dwelling at the site;
• the appearance of the carport is not of a high quality and negatively impacts on the Sasse Avenue streetscape, the design (flat roof constructed of metal sheeting and metal supports) results in it being the dominate feature of the site;
• the structure of the carport is not integrated into the existing dwelling at the site through design, materials, scale or roof pitch;
• the carport is isolated from the dwelling and as a result negatively impacts on the amenity of the locality;
• the carports at Nos 94, 92, 90, 88 and 86 Sasse Avenue are integrated into the dwelling through built form, scale, colours and materials to be seamlessly incorporated into the streetscape, assisting in improving amenity; and
• the juxtaposition of design styles does not provide for a positive contribution to the existing streetscape and negatively impacts on amenity.
69 Further, Mr Hajigabriel submitted that if the DeemedtoComply Criteria (as set out above) is not satisfied, consideration is to be given to the Design Solution which provides:
P5.7.1 The setting back of carports and garages to maintain clear sight lines along the street are not to detract from the streetscape or appearance of dwellings; or obstruct views of dwellings from the street and vice versa.
P5.7.2 Development which preserves and enhances the visual character of the existing streetscape by considering building bulk, scale, setbacks and design.
70 Mr Hajigabriel concluded that the carport does not satisfy the above conditions for reasons previously stated including that the carport structure is not harmonious with the streetscape of Sasse Avenue and that the carport does not display architectural design or form which is complementary to the existing dwelling.
71 The Tribunal notes that the DeemedtoComply Criteria in the Assessment Table provides a means by which development can be 'DeemedtoComply' with the relevant Design Solution and therefore provide a speedy and certain path to approval. However, the Design Solution details both prescriptive and performance based provisions.
72 The Tribunal agrees with Mr Hajigabriel's interpretation of the DeemedtoComply Criteria. That is, if the DeemedtoComply Criteria is satisfied that means the Design Solution is also complied with (automatically). However, if the DeemedtoComply Criteria is not satisfied (as the respondent asserted in this matter) then there is a discretion available to the respondent to grant the application if it satisfies the Design Solution.
73 However, the acceptable development criteria and DeemedtoComply Criteria are neither a mandatory nor a finite list of the means of satisfying the Design Solution. The Tribunal must consider all relevant submissions to determine whether the Design Solution for the carport can be satisfied, and, further, as required by TPS 1, determine whether the amenity of the locality would be conserved and the development would be consistent with orderly and proper planning. In this regard, the Tribunal notes it must have regard to relevant planning instruments such as LPP 7.1.1 but is not constrained by such instruments.
74 The Tribunal concludes that the DeemedtoComply provisions in LPP 7.2.1 (and the more recent LPP 7.1.1) are not satisfied for the reasons put forward by the respondent. Unlike the carports at Nos 94, 92, 90, 88 and 86 Sasse Avenue, the applicant's carport stands in isolation of the existing dwelling, and looking at it from the street (per the photographs provided to the Tribunal) is not seamlessly integrated into the dwelling or the streetscape due to at least the scale and materials used.
Precedent
75 The applicant submitted that the existence of eight carports on Sasse Avenue with 'flat roofed' carports means there is an established precedent. The applicant stated that along Sasse Avenue there are 22 properties (or 37%) which have carports installed in the front area of the property therefore his carport adds to the established streetscape rather than negatively impacting on the streetscape. Further, the applicant said that the carport at 95 Sasse Avenue was installed without planning approval or receipt of a building licence, yet the respondent appears to have done nothing about that carport.
76 In summary, the applicant stated that his carport does not dominate the streetscape as it is barely visible when viewed looking north or south down Sasse Avenue from the adjoining properties to his dwelling. The applicant concluded that, in his view, there is a definite trend on Sasse Avenue for carports with 'low pitched roofs'.
77 The Tribunal considers that the existing carports on Sasse Avenue cannot be cited as a precedent for the approval (retrospective) of the applicant's carport. The presence of certain carports on Sasse Avenue is not, of itself, sufficient to simply abandon the established planning controls. The Tribunal is concerned that other landowners in Sasse Avenue may well see approval (retrospective) of the applicant's carport in circumstances where the planning instruments provide no support for allowing the structure, as a precedent for the construction of carports with flat roofs regardless of the existing dwelling that they should be allowed to follow.
78 Whether setting an adverse precedent is a relevant matter for consideration in deciding whether or not to grant approval for a development was considered in Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls). There, the first test was whether the proposed development would not itself be unobjectionable.
79 In this matter, the Tribunal (as set out earlier) determined that the carport is objectionable on the basis that it intrudes into the Sasse Avenue streetscape.
80 The second test in Nicholls was whether there would be more than a mere possibility that there may be later undistinguishable applications. The evidence is that Sasse Avenue is generally comprised of older 1970s building stock, including the applicant's dwelling. The Tribunal is of the view that if the applicant's carport is approved (retrospectively) there is more than a mere possibility of later applications from owners in Sasse Avenue and the locality being undistinguishable. This is because a flat roof form constructed of metal sheeting and supported by four metal columns is not in keeping with the design of the existing dwelling and there would not be any particular basis for approving the carport other than the desire to provide a roof over a parked vehicle. The carport would intrude into the streetscape, and so, in the circumstances of this case, the Tribunal concludes that an approval would be seen to be establishing an undesirable precedent.
Conclusion
81 Any decision on whether to exercise discretion in the matter under review involves weighing up the impact of the constructed carport on the character of the streetscape against LPP 7.2.1 (and LPP 7.1.1) to encourage residential development that harmonises with the existing streetscape and complements the character of the locality. This is reinforced in TPS 2 where it is stated that one of the objectives of the residential zone is to enhance the amenity and character of the residential neighbourhood by encouraging the retention of existing housing stock and ensuring new development is compatible with those established in the locality.
82 Essentially, the applicant believes his carport is an acceptable addition to the Sasse Avenue streetscape and that it meets the requirements of the DeemedtoComply Criteria.
83 The applicant's dwelling on Sasse Avenue is 1970s building stock (brick and tile with a pitched roof). The carport, however, is constructed of metal sheeting with metal stands with a flat roof which is detached from the dwelling. The applicant has interchanged the terms 'low pitched roof' and 'flat roof' to describe his carport roof. From the photographs of the carport provided to the Tribunal, it is clear that the carport has a flat roof. There is no pitch to the applicant's carport.
84 On balance, the Tribunal agrees with the respondent, the applicant's carport was constructed of metal sheeting and supported by four metal columns with one column located in each corner of the structure and a flat roof which is isolated from the existing dwelling which is a 1970s style building stock (brick and tile with a pitched roof). The applicant's carport does not harmonise with the existing Sasse Avenue streetscape. Nor does it complement the character of the locality. Finally, in the Tribunal's view, the carport does not meet the requirements of LPP 7.2.1 (or LPP 7.1.1) or the RCodes.
85 For these reasons the application for review is dismissed.
Orders
The Tribunal orders:
1. The application for review is dismissed.
2. The decision of the City of Vincent dated 6 July 2016 to refuse the application to add a carport to the existing single house at 96 Sasse Avenue, Mount Hawthorn, is affirmed.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R PETRUCCI, MEMBER
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