KINGSBURY and CITY OF STIRLING
[2009] WASAT 212
•29 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KINGSBURY and CITY OF STIRLING [2009] WASAT 212
MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 29 OCTOBER 2009
FILE NO/S: DR 245 of 2009
BETWEEN: JAMES KINGSBURY
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Development application - Refusal - Three grouped dwellings - Two crossovers - Removal of existing street tree - Whether development complies with vehicular access requirements in the Residential Design Codes of Western Australia (2008) - Whether development complies with the City of Stirling Policy 2.1.2 'Street Trees'
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.3.5.1(f)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.5.4, cl 6.54 P4, cl 6.5.4 A4.3
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
The application for review is dismissed
The decision of the respondent to refuse development approval is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr B Lunt (Representative)
Respondent: Mr B Pawlenko
Solicitors:
Applicant: Mr B Lunt (Town Planner)
Respondent: City of Stirling
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 three two-storey grouped dwellings at No 85 (Lot 164) Hayes Avenue, Yokine.
The City of Stirling was concerned that the proposal would result in the removal of an existing Brush Box street tree in order to provide vehicular access to one of the units.
The Tribunal found that the proposal did not comply with cl 6.5.4 of the Residential Design Codes of Western Australia (2008) or the City of Stirling Street Trees Policy. The Tribunal was satisfied that there were reasonable alternatives available to the applicant which would enable the retention of the existing street tree.
The application for review was therefore dismissed and the decision of the City of Stirling to refuse development approval for three grouped dwellings was affirmed.
Introduction
These proceedings involve an application brought by Mr James Kingsbury (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Stirling made on 25 May 2009 to refuse development approval for three grouped dwellings at No 85 (Lot 164) Hayes Avenue, Yokine (subject site).
Site and locality
The subject site is rectangular in shape with an area of 1,055 square metres. The eastern boundary fronts onto Hayes Avenue and is 20.12 metres in length, as is the western boundary to the rear. The northern and southern side boundaries are both 52.44 metres in length.
The subject site slopes from north to south with a 1.27 metre difference in levels at the eastern (front) boundary and a 1.24 metre difference at the western (rear) boundary. It also slopes from east to west, with a 2.14 metre level change along the northern (side) boundary and a 2.17 metre level change along the southern (side) boundary.
The subject site currently houses a single unoccupied dwelling which will be demolished in order to build the proposed three grouped dwellings.
There is a mature Brush Box (Lophostemon confertus) street tree (subject street tree) on the verge, located, according to the site plan submitted by the applicant, approximately 5 metres from the northern boundary of the subject site. The subject street tree is approximately 6 metres in height with a width of 4 metres to 5 metres and a trunk diameter of 170 millimetres.
Photographs provided by the respondent in their Section 24 Bundle of Documents show the subject street tree as one in an avenue of similar sized street trees. The street trees on this (the western) side of the road have been heavily pruned as they have power lines running overhead. They appear to be spaced at regular intervals with one street tree in front of each property.
Planning framework
The subject site is zoned Urban under the Metropolitan Region Scheme (MRS). The subject site is zoned Residential and has a residential density coding of R30 under the City of Stirling District Planning Scheme No 2 (DPS 2).
Clause 1.3.5.1(f) of DPS 2 lists matters that the City is to have regard to when considering applications for planning approval and includes:
…
(iii)any approved statement of planning policy of the Commission;
…
(v)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
(vi)any Local Planning Policy adopted by the local government under Clause 1.4.3, …
(xii)the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate on the natural environment;
…
(xiv)the preservation of the amenity of the locality;
…
(xxiv)the potential loss of any community service or benefit resulting from the planning approval;
…
The Residential Design Codes of Western Australia (2008) (Codes) are relevant to this matter, as is the City of Stirling Street Trees Policy (Street Trees policy).
Proposed development
The proposed development consists of three two-storey grouped dwellings (Unit 1, Unit 2 and Unit 3) with rendered brick walls and pitched colorbond roofs. Each of the three dwellings has a different floor plan but generally contains the same accommodation which includes a double garage, a basement cellar, three bedrooms, an open plan kitchen/dining/family room, a home theatre, a study, an activity/general area, a laundry, two bathrooms and two water closets.
Unit 1, to the front of the subject site, is 299.08 square metres in area; Unit 2 is 270.02 square metres in area; and Unit 3 is 359.85 square metres in area. There is a common property area of 126.14 square metres on the south side of the subject site. This 4 metre wide access way is for pedestrian and vehicular access to Unit 2 and Unit 3. Unit 1 fronts Hayes Avenue and has a separate crossover located on the north side of the subject site.
It is the crossover on the north side of the subject site providing vehicular access to the double garage of Unit 1 which the applicant says will require the removal of the subject street tree.
Council's decision
The application for planning approval for three grouped dwellings on the subject site was refused by the respondent on 25 May 2009 for the following reason:
The proposal does not accord with the provisions of the City's Street Trees Policy adopted by council on 7 April 2009.
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 respondent submitted in its statement of Issues, Facts and Contentions the following issue:
Whether planning approval for the proposed three grouped dwellings at No. 85 (Lot 164) Hayes Avenue, Yokine (subject lot) should be granted if, as the City contends, the development would be inconsistent with Clause 1.3.5.1 of the respondent's District Planning Scheme No.2 having due regard to the Residential Design Codes 2008 ... and the respondent's 'Street Trees Policy' (reviewed 7 April 2009).
The applicant agreed that this was an issue but added their own as follows:
1.Whether the applicant's proposal conforms to the respondent's Street Trees policy.
2.Whether the safe location of formed driveways holds greater than the retention of street trees in accordance with the Codes.
3.Whether it is practical to remove a street tree with a reduced amenity value (by way of severe pruning techniques) by supporting a proposal that incorporates safely formed driveways and complies with the [Codes].
The Tribunal will address the issues raised in this matter first, with reference to the requirements for vehicular access and formed driveways in the Codes (specifically cl 6.5.4) and second, with reference to the respondent's Street Tree policy.
Whether the proposed development complies with cl 6.5.4 of the Codes
With regard to the Codes, the specific area of concern to the respondent is their contention that the proposed development does not meet either the acceptable development standards or the performance criteria for vehicular access as contained in cl 6.5.4.
Clause 6.5.4 of the Codes states the relevant acceptable development requirements for vehicular access as:
A4.3Formed driveways:
…
•located so as to avoid street trees, or, where this is unavoidable, the street trees replaced by the council at the applicant's expense or replanting arrangements to be approved by the council.
The performance criteria for vehicular access in cl 6.5.4 of the Codes is:
P4Vehicular access provided so as to minimise the number of crossovers, avoid street trees, to be safe in use and not detract from the streetscape.
With regard to the acceptable development requirements of cl 6.5.4, the respondent contends that:
a)The proposed formed driveway has not been located to avoid street trees;
b)This proposed development, which incorporates two driveways to one lot, can be redesigned so as to avoid the street tree.
With regard to the performance criteria of cl 6.5.4, the respondent contends that:
a)Vehicular access has not been provided so as to minimise the number of crossovers;
b)The proposed formed driveway has not been located to avoid street trees;
c)Removal of the second crossover or redesign of proposed Unit 1 can be designed to avoid the street tree and be safe in use and is not considered to detract from the streetscape.
Mr Blair Lunt, the planning consultant representing the applicant, has provided responses to each of the respondent's contentions and is of the view that 'the emphasis of the Codes is on safely formed driveways and not the retention of street trees'. He notes that 'there is no specific requirement under the Codes for the retention of street tree(s)'.
Mr Lunt states that 'whilst the applicant concedes there are alternative design solutions available, the application of these are considered unreasonable and impose additional development costs'. The Tribunal has been provided with indicative plans and associated costs for three different options for relocating the double garage of Unit 1 and consequently the crossover required to access it.
It is the applicant's contention that redesigning the proposed development in order to relocate or remove the proposed crossover to Unit 1 is 'excessive to the requirements and intent of cl 6.5.4 of the Codes and therefore unreasonable'.
Mr Lunt contends that the proposed development complies with the acceptable development standards contained in acceptable development A4.3 of cl 6.5.4 of the Codes in that removal of the subject street tree is unavoidable and in this case it will be replaced with a tree to the City's specification and at the applicant's cost.
The Tribunal is of the view that there are a variety of design solutions possible for a development of three grouped dwellings on the subject site which do not require the removal of the subject street tree. The site is rectangular in shape and has a 20.12 metre frontage of which only approximately 20% is required for safe vehicular access.
The applicant argues that there are topographical constraints and that 'if the site were relatively flat, the applicant would have designed the development in such a way as to retain the subject street tree'. The Tribunal acknowledges the change in level of approximately 2 metres from the front to rear boundaries but it should be remembered that these boundaries are over 50 metres in length. The Tribunal does not consider it an onerous task to design a three unit grouped dwelling development on the subject site with access for all three units from the common property proposed thereby eliminating the need to remove the subject street tree.
The Tribunal therefore finds that the proposed development does not satisfy the acceptable development standards of cl 6.5.4 of the Codes as the removal of the subject tree is considered avoidable.
With regard to the performance criteria of cl 6.5.4 of the Codes, the applicant contends that there is greater emphasis on the provision of safe formed driveways than on the retention of street trees. The Tribunal is of the view that performance criteria P4 requires the proposal to minimise the number of crossovers, avoid street trees as well as provide safe vehicular access and to not detract from the streetscape. There does not appear to be an emphasis on the issue of safety above the other three criteria.
In this case, in the opinion of the Tribunal, providing two crossovers to the subject site will not minimise the number of crossovers; removing an existing street tree will not 'avoid' the street tree; accessing all units from one crossover will not reduce safety; and finally, removing an existing mature street tree in an avenue of similar sized and spaced trees will detract from the streetscape.
The Tribunal therefore finds that the proposed development does not satisfy either the acceptable development standards or the performance criteria contained in cl 6.5.4 of the Codes.
Whether the proposed development complies with the respondent's Street Tree policy
The respondent's Street Tree policy addresses the issue of street tree removal generally as follows:
The City recognises the significant contribution made by street trees to both the aesthetic and environment aspects of existing streetscapes within the City. It also recognises that in some cases, tree retention may not be desirable, feasible or reasonable, owing to the condition, location or species of the tree, its implications for development on an abutting site and / or the achievement of the other Council objectives.
The City will not remove street trees except where retention is considered undesirable or unreasonable, such as where: exceptional circumstances exist relating to public risk and safety; the tree species is not an approved variety and is not acceptable to the City; or the tree precludes redevelopment of an adjoining site, with no other reasonable alternative to removal.
The policy addresses street tree removal specifically and states:
…
7.The tree impinges on the development potential of the abutting property(s) with no reasonable design alternatives existing. A 'reasonable design alternative' may involve:
•Deletion of second / additional crossovers to development sites and the requirement for shared access;
•The altering of development design to relocate crossovers out of the way of street trees;
•The tapering of driveways to a maximum of 1 in 5 to avoid the street tree.
…
9.Redesign to retain street trees involving the following will not normally be required of applicants:
•Access design not meeting the City's traffic safety requirements;
•Changes affecting the number of dwellings the lot is capable of sustaining under the zoning;
•For developments involving 3 or fewer dwellings, the relocation of infrastructure / services costing more than $5000, or, in other circumstances, an unreasonable cost impost. Redesign costs will not be taken into account as the R-Codes clearly require avoidance of street trees as a routine requirement;
•In Heritage Protection Areas, significantly reduced heritage character;
•Significant conflict with another planning objective of the City.
...
12.The following are not considered sufficient reason for the removal of street trees:
•The tree obscures or potentially obscures views (other than traffic / pedestrian sight lines);
•The tree variety is disliked;
•The tree variety causes nuisance by way of leaf, fruit and / or bark shedding or the like;
•The tree is in the way of a non-essential crossover or verge parking option;
•The tree shades private gardens, solar hot water installations or the like.
As discussed above, the applicant has provided the Tribunal with three design alternatives and related costings, but is of the view that all three 'are impractical, unreasonable prejudicial and detrimental to the applicant to the existing streetscape and/or threaten the projects feasibility'.
One of the arguments made by the applicant is that relocating the garage and associated crossover to Unit 1 would result in an increase in development costs in the order of between $15,000 and $27,000 depending on the design option chosen. Mr Lunt argues that as this is greater than the $5,000 referred to in the Tree policy then it is obviously unreasonable.
The Tribunal is of the view that the $5,000 referred to in the Street Tree policy refers to 'the relocation of infrastructure / services' not construction costs. In fact the Street Tree policy clearly says that 'Redesign costs will not be taken into account as the R-Codes clearly require avoidance of street trees as a routine requirement'. Mr Lunt disputes this section of the Street Tree policy and contends that the Codes 'places emphasis on the safe location of crossovers and not the "routine requirement" of avoiding or retaining street trees'.
Further contentions made by the applicant are that due to the topography of the subject site, relocating the garage to Unit 1 with access from the communal driveway would 'require careful placement of retaining walls and setting of floor levels to ascertain correct driveway gradients a functional home design and usable private open space areas' and that this would increase development costs.
The respondent argues that 'the maximum change in level would be up to two steps which is not deemed to be excessive and is considered a normal outcome of developing on a sloping site'.
The final argument made by the applicant is that the current proposal allows for 'additional informal resident and visitor parking in the area fronting the garage to Unit 1'.
Having considered all of the contentions made by both the applicant and the respondent and submitted in their respective documents, the Tribunal is satisfied that there are reasonable design alternatives available to the applicant for the subject site which would provide appropriate vehicular access as well as an aesthetically pleasing street presentation while maintaining the integrity of the subject street tree.
The Tribunal does not find that the retention of the tree 'impinges on the development potential' of the subject site as there are a variety of 'reasonable design alternatives' available to the applicant, particularly locating the garage for Unit 1 to the rear of the lot with access off the communal driveway. The subject street tree forms part of an existing regular street tree pattern which would be disrupted should it be removed to build a driveway access.
The Tribunal therefore finds that the proposed development does not comply with the respondent's Street Tree policy.
Conclusion
The Tribunal has determined that the proposed development does not comply with either the acceptable development standards or the performance criteria in cl 6.5.4 of the Codes. The Tribunal has also determined that the proposal does not comply with the respondent's Street Tree policy.
It follows that the application for review should be dismissed and the decision of the respondent to refuse development approval should be affirmed.
Orders
1.The application for review is dismissed.
2.The decision of the respondent to refuse development approval is affirmed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, SENIOR SESSIONAL MEMBER
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