Kinnersly and Town of Cambridge
[2008] WASAT 44
•27 FEBRUARY 2008
KINNERSLY and TOWN OF CAMBRIDGE [2008] WASAT 44
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 44 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:255/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 26/02/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | CARMEL KINNERSLY TOWN OF CAMBRIDGE |
Catchwords: | Town planning Application for planning approval Front setback area Orderly and proper planning Amenity Undesirable precedent Performance criteria Acceptable development provisions Streetscape Setback of the garage |
Legislation: | Metropolitan Region Scheme Planning and Development Act2005 (WA), s 252(1) State Administrative Tribunal 2004 (WA), s 29(3)(c) Town of Cambridge Town Planning Scheme No 1, cl 19(3), cl 38(4), cl 48, Sch 1 Town Planning and Development Act 1928 (WA), s 5AA |
Case References: | Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988) |
Orders | 1. The application for review is upheld, subject to the proposed development being substantially commenced within a period of two years from the date of this determination, and subject to the following conditions:,(i) All property stormwater to be retained on site;,(ii) The parapet wall to the boundary being finished in flush brickwork, or rendered and painted to the satisfaction of the Town of Cambridge. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KINNERSLY and TOWN OF CAMBRIDGE [2008] WASAT 44 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 FEBRUARY 2008 FILE NO/S : DR 255 of 2007 BETWEEN : CARMEL KINNERSLY
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Application for planning approval - Front setback area - Orderly and proper planning - Amenity - Undesirable precedent - Performance criteria - Acceptable development provisions - Streetscape - Setback of the garage
Legislation:
Metropolitan Region Scheme
Planning and Development Act2005 (WA), s 252(1)
State Administrative Tribunal 2004 (WA), s 29(3)(c)
Town of Cambridge Town Planning Scheme No 1, cl 19(3), cl 38(4), cl 48, Sch 1
(Page 2)
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The application for review is upheld subject to conditions
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988)
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Town of Cambridge to refuse an application for a double garage and storage area within the front setback and on the eastern side boundary at Lot 1 (No 29) Evandale Street, Floreat.
2 The Tribunal considered the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions, the substance of a previous Ministerial decision for a broadly similar proposal and the matter of precedent.
3 The Tribunal believed that the wide street verge, in combination with the 10.5 metre setback to the existing residence, provided a high degree of openness that went beyond that of many of the residences in Evandale Street.
4 This provided the Tribunal with a degree of flexibility to allow the development without compromising the overall openness of the immediate locality or detracting from the streetscape.
5 The Tribunal determined that an approval would not be contrary to orderly and proper planning, would not seriously affect the amenity of the adjoining owner to the east and, in the particular circumstances of this case, would be unlikely to create a precedent in the locality.
Introduction
6 The application for review, dated 23 July 2007, was lodged by Ms Carmel Kinnersly (applicant) against a decision of the Town of Cambridge (respondent, Town or Council) on 27 June 2007 to refuse an application for a double garage with associated storage at No 29 Evandale Street, Floreat.
7 The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
8 The reasons for refusal were:
"That in accordance with the provisions of the Town of Cambridge Town Planning Scheme No 1 and matters required to be considered under the Scheme generally, and in particular, as the proposal would be contrary to the orderly and proper
(Page 4)
- planning of the locality, Council REFUSES the application submitted by Carmel Kinnersly, at Lot 1 (No 29) Evandale Road, Floreat as shown on the plans dated 11 June 2007 for the following reasons:-
i) non[-]compliance with Clause 3.2.3 of the Codes with regard to the setback variations to the proposed garage, its impact on the streetscape in terms of building bulk and creating an undesirable precedent for the locality;
ii) non[-]compliance with Clause 2.1.1 of the Town of Cambridge Residential Design Guidelines with regard to the front setback variations to the proposed garage, its impact on the streetscape in terms of building bulk and creating an undesirable precedent for the locality."
Subject land
9 The subject land can best be described as Lot 1 (No 29) Evandale Street, Floreat on Certificate of Title, Volume 521, Folio 99A (Diagram or Plan 40806).
10 The property has an area of 683 square metres with a north-south orientation. The northern front boundary to Evandale Street is 18.61 metres wide to match the rear boundary (18.61 metres), whilst the western boundary is 36.65 metres and the eastern boundary is 30.62 metres.
11 There is a single storey brick and tile residence on the subject land, which has a gentle downward slope from west to east. The street is characterised by a number of similar type dwellings.
Legislative and policy framework
12 The subject land is zoned "Urban" in the Metropolitan Region Scheme and "Residential" in the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme). It has a coding of "R15".
13 Of relevance in this matter are the:
a) Residential Design Codes of Western Australia (2002) (Codes); and
b) Town of Cambridge Residential Design Guidelines (RDG).
(Page 5)
Respondent's position
14 The position of the respondent is outlined in its Statement of Issues, Facts and Contentions as date-stamped by the Tribunal on 31 August 2007. The respondent contends:
a) The proposed development will have a detrimental impact on the amenity of the streetscape by way of a solid garage in the front setback area.
b) The proposed development does not meet the performance criteria in cl 2.1.1 (Street Setbacks) of the RDG, as the proposed setback of the garage from the front boundary:
i) is not compatible with the established line and pattern of setbacks in the street; and
ii) will adversely impact on the pattern of development in the street because of the position, shape or topography of the lot.
c) The variation to the 6.0 metre front setback requirement to 4.5 metres for the garage will be contrary to the amenity of the area and, will establish an undesirable precedent for future development.
d) There is scope for the garage to be replaced with a visually permeable carport which could be made secure with open-style grilles (or similar) to provide a more open aspect to the street.
Applicant's position
15 The position of the applicant is outlined in the Grounds of Appeal as submitted in the application for review. The document explains:
a) The Minister for Planning approved the proposed building on 24 November 2000.
b) The Town issued a building licence on 26 June 2001.
c) Clause 2.1.1 of the RDG does provide for variation to the policy in certain circumstances, namely when:
- i) the setback is compatible with the established line and pattern of setbacks in the street;
ii) a reduction in the setback would not adversely impact on the pattern of development in the street because of the position, shape or topography of the lot; and
iii) visual separation is maintained between buildings and adjoining properties.
- d) The neighbour on the adjoining property to the east has consented to the development.
e) There are similar structures in the locality which are built on one lot, traverse two lots or are within a 1.0 metre side setback.
f) On Evandale Street and the adjoining Birkdale, Salvado and Bournville Streets, there are a number of garages/carports which are outside the guidelines but within the performance criteria.
g) The construction of a double garage will minimise the unsightly impact of some of the vehicles parked on-site.
h) The provision of a storage area at the rear of the garage would also give access to the rear of the property. The storage area would allow further security and privacy for the applicant. There have already been instances of vandalism.
i) The impact of the proposed development will not impinge on the overall visual amenity of the area.
Planning issues
16 The principal planning issues are:
(a) Would the proposed development, if constructed, be contrary to the orderly and proper planning of the locality?
(b) Would the proposed development, if constructed, be likely to create an undesirable precedent?
(Page 7)
Assessment of the proposal
Background
17 A similar proposal to the current application was presented to Council in June 2000. It proposed a double garage and store but sought to project the structure to within 3.0 metres from the front boundary and had a different roof configuration.
18 The application was refused for the following reasons:
"(i) the setbacks do not comply with the requirements of the Residential Design Guidelines;
(ii) having regard to the length and height of the proposed double garage and storeroom situated on the eastern boundary, and the reduced side and front setbacks, the proposal does not satisfy the performance criteria under Clause 6.4 of the Town of Cambridge Residential Design Guidelines. In this regard, it is considered that the proposed double garage and storeroom on the boundary would be obtrusive (in terms of building bulk) and detract from the amenity of the adjoining property."
19 The applicant subsequently lodged an appeal with the then Minister for Planning who upheld the appeal on 24 November 2000 subject to:
(a) the garage being set back 4.5 metres from the front boundary; and
(b) such conditions as the Town might reasonably impose.
20 As a consequence of this decision, a second building application was lodged with Council in March 2001 showing a 4.5 metre setback.
21 On 26 June 2001, a building licence was issued for the garage and storage shed with a proviso that:
"If the building work permitted by this licence is not substantially commenced within 12 months of the date of this licence, the licence becomes void."
22 As building work did not commence within the specified time, the approval lapsed in June 2002.
(Page 8)
23 The events relating to the most recent application are outlined in [6] to [8] above.
The proposed development
24 The proposed development is located at the front of the existing residence and comprises a double garage, with provision for additional storage. A "Tilt-A-Door" and "Service Pit" are included in the $12 000 proposal.
25 The structure is to be fully enclosed, and has a parapet wall to the side (eastern) boundary.
26 The overall structure has a maximum length of 8.59 metres but only 5.83 metres is forward of the existing residence. It has a width of 5.44 metres.
27 The proposed structure is set back 4.5 metres from the front boundary and, according to the applicant, is some 10.5 metres from the road pavement.
Legislative and policy provisions
Town of Cambridge Town Planning Scheme No 1
28 Under cl 19(3), it states:
"Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes."
29 In October 2002, the Residential Planning Codes were replaced by the Codes. These were published by the Western Australian Planning Commission as a Statement of Planning Policy under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) (as amended), and required all residential development to conform to the Codes.
30 The "Determination of Applications for Planning Approval" is covered under cl 38 and includes:
(Page 9)
- "…
(4) Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to -
(a) the provisions of this Scheme …
(b) any relevant Planning Policy;
(c) any Statement of Planning Policy of the Western Australian Planning Commission;
…
(e) any submission accompanying or related to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenities of the locality;
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
"(1) The Council may make Planning Policies which are to -
(a) relate to an aspect or aspects of development control or any other matter relevant to this Scheme;
…
(2) In preparing a draft Planning Policy, the Council is to have regard to -
(a) the purpose for which land is set aside under this Scheme;
(b) the orderly and proper planning of the locality;
(c) the conservation of the amenities of the locality;
…"
(Page 10)
32 Under Schedule 1 - Definitions, the term "amenity" is defined as:
"… the expectations of those living and working in an area about the quality of their environment including its pleasantness, character, beauty, harmony in the exterior design of buildings, privacy, security."
Town of Cambridge Residential Design Guidelines
33 The RDG were adopted by Council as a planning policy under the Scheme and explain under cl 1.2:
"All residential development is required to comply with these Guidelines …
Variations and departures are possible, but need to be justified by both the developer and the Council …"
34 Under cl 2.1.1 (Street Setbacks), the performance criteria are outlined:
"New development should meet these criteria.
P1
• The setback is compatible with the established line and pattern of setback in the street.
• A reduction in the setback would not adversely impact on the pattern of development in the street because of the position, shape or topography of the lot; and
• Visual separation is maintained between buildings and adjoining properties."
35 Under cl 2.1.1 A1.3, the Acceptable Development Provisions are outlined for areas coded R15 in Floreat. They include:
"i. The minimum setback from a primary street boundary to buildings (including garages but excluding carports) is 6.0 metres without provision for averaging."
36 It is clear to the Tribunal that the intent of the RDG is to allow new development in those areas coded "R15" in Floreat, providing it is compatible with the established setback in the street. Also, that if
(Page 11)
- variations are granted, they do not adversely impact on the overall appearance of the existing open streetscape.
Residential Design Codes of Western Australia (2002)
37 The matter of an appropriate street setback distance is addressed on page 47 of the Codes in this way:
"In the case of established residential areas with valued streetscapes, it will usually be the case that there is a consistent pattern of street setbacks. In these cases, new development should closely conform to the established pattern. Where the pattern varies, a setback midway between that of the buildings on either side may be acceptable.
In established areas, it may be desirable for the Council to stipulate setbacks for a particular area by setting them out in a Local Planning Policy under the Scheme."
38 The Codes address development within the street setback area on page 48:
"As a generalisation, the street setback area should be open, enabling a clear view of the building from the street, and vice versa.
… where no feasible alternative exists, the street setback area may be utilised for carports and unroofed parking spaces. Carports are acceptable, because they allow a clear view between a public street and a private dwelling. Garages are not acceptable, unless they can be accommodated without obstruction to views between street and house at ground level. Such exceptions are likely to be rare."
39 The "Objective" for Streetscape Requirements is stated on page 52:
"To contribute towards attractive streetscapes and security for occupants and passers[-]by, ensure adequate privacy and open space for occupants, and provide an alternative setting for buildings."
40 The performance criteria for the setback of garages and carports under the Streetscape Requirements are addressed under cl 3.2.3:
(Page 12)
- "P3 The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street and vice versa."
41 The acceptable development provisions for the setback of garages and carports under the Streetscape Requirements include:
"A 3.1 Garages and carports located behind the street setback line.
…
A 3.5 Garages set back 4.5 m from the primary street. This may be reduced where a garage adjoins a dwelling, provided the garage is at least 0.5 m behind the dwelling alignment (excluding any porch, verandah or balcony) or set back 3 m where vehicles are parked parallel to the street alignment."
"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy and overshadowing on adjoining properties."
43 The performance criteria for buildings set back from the boundary under the Boundary Setback Requirements are addressed under cl 3.3.1:
"P1 Buildings set back from boundaries other than street boundaries so as to:
• provide adequate direct sun and ventilation to the building;
• ensure adequate direct sun and ventilation being available to adjoining properties;
• provide adequate direct sun to the building and appurtenant open spaces;
• assist with protection of access to direct sun for adjoining properties;
- • assist in ameliorating the impacts of building bulk on adjoining properties; and
• assist in protecting privacy between adjoining properties."
44 The acceptable development provisions for buildings set back from the boundary under the Boundary Setback Requirements are also addressed under cl 3.3.1. They include:
"A1 …
i. Buildings set back in accordance with Table 1, Table 2 (for all heights 10 m or less …"
46 The performance criteria for buildings on a boundary under the Boundary Setback Requirements are addressed under cl 3.3.2:
"P2 Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to -
• make effective use of space; or
• enhance privacy; or
• otherwise enhance the amenity of the development; and
• not have any significant adverse effect on the amenity of the adjoining property; and
• ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."
48 The way in which the Codes are intended to work is explained on page 3:
(Page 14)
- "The Acceptable Development provisions contained in the Codes provide a means by which development can be 'deemed-to-comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
49 In the view of the Tribunal, it is clear that the overall intent of the Codes is to protect existing streetscapes, but the question before it is whether it is fair and reasonable to assess this particular case under the more detailed Acceptable Development provisions, or the broader based Performance Criteria.
The previous Ministerial decision
50 On 24 November 2000, the then Minister for Planning, the Hon Graham Kierath MLA, upheld an appeal by Ms C Kinnersly against a decision of the Town of Cambridge to not approve a double garage on the subject land.
51 In that particular case, the Minister had before him a joint proposal for a similar structure on the adjoining lot at No 27 Evandale Street. The structures were set back 3.0 metres from their front boundaries, and 1.0 metre only from the joint side boundary.
52 The Minister upheld the appeal in part, subject to the garage structures being set back 4.5 metres from the front boundaries, and the construction of parapet walls with a nil side setback.
53 In his reasons, the Minister made the following points:
a) The streetscape is characterised by generous setbacks to existing residences and landscaped front yard areas.
b) There is a proliferation of carports within the front setback area of Evandale Street.
c) There is a double garage at No 39 Evandale Street with a side parapet wall situated at a 4.5 metre setback from the street frontage. This structure was granted planning consent prior to the RDG being adopted by the Town.
d) The intention of the RDG in protecting the character of an area is a positive attribute. However, they do not recognise existing building constraints or adequately
- address concerns of security; a case in point being an existing residence which is so positioned as to prevent the possibility of constructing a garage at the required 6.0 metre setback.
- e) The existing residences are set back substantially from the street frontage and, although not allowing a 6.0 metre setback, would allow a 4.5 metre setback to a garage.
f) The required setback of 1.0 metre from the side boundary to create visual separation between the proposed abutting garages would create a strip of land 2.0 metres wide which would serve no useful purpose. Utilisation of parapet walls/nil side setbacks would seem to constitute better use of the land.
g) Open carports with wrought iron infill panels are neither an acceptable form of security or compatible with the existing architectural style of the residences.
54 What is clear to the Tribunal is that if the development had proceeded as approved in November 2000, there would now be two double garages set side by side at a 4.5 metre setback from the front boundaries. Just why the developments did not proceed is not known to the Tribunal.
The matter of precedent
55 In her submissions, the applicant provided photographic evidence of garages and carports in Evandale Street and the nearby Birkdale Street and Alderbury Street.
56 Amongst the examples were structures built within the front setback area with parapet walls or with a setback to the side boundary. In some instances, the carports appeared to be a garage with one side filled in with brickwork and with a front "Tilt-A-Door".
57 In the respondent's response of 20 September 2007 to the applicant's submissions, the following points were made:
a) Although there may be instances in the locality of garages and enclosed carports in the front setback area within the "R15" precinct, the general appearance is one if an open streetscape with buildings set back behind the setback line.
(Page 16)
- b) Of the 11 examples cited by the applicant, three are not within the front setback area and one faces a secondary street. The other examples either have some form of infill that may, or may not, have an approval, are open or are older developments that were approved prior to the gazettal of the RDG.
c) The examples cited as precedents for allowing a garage within the front setback are examples of why reduced setbacks should not be approved. They demonstrate that garages can have a detrimental impact on the streetscape and general amenity of the area.
d) The majority of instances of car parking in the front setback area in the immediate locality (defined as that portion of the street that is visible around the subject land) are open-style carports in Evandale Street that do not have a detrimental impact on the streetscape.
e) Regard needs to be had to the stated objectives of the Town, which is to encourage open streetscapes.
f) The Town recognises the need to provide parking areas for all dwellings and that, due to site constraints, this must often be in the front setback area. Carports, as opposed to enclosed garages, allow this to occur without compromising the streetscape. Visually permeable sides to the carport, including a visually permeable garage door, would allow for an open streetscape whilst providing security to vehicles.
58 In a response to these points, the applicant advised on 26 September 2007 that:
a) Most of the houses in Evandale Street are closer to their front boundary than the residence on the subject land.
b) There would not be many houses left in Floreat that would be set back as far as the residence on the subject land.
c) The proposed garage would be in keeping with the style of the existing home and would look better than adding an open carport.
(Page 17)
- d) The free-standing carports in the street are being filled in, are becoming more bulky and look like sheds.
e) Open carports do not stop theft.
59 The matter of precedent was addressed in Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988) (Aspen) wherein it was explained that precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account in reaching a decision.
60 The approach adopted in Aspen will be continued in this review.
Conclusions
61 The application for review was lodged against a decision of the Town of Cambridge to refuse an application for a double garage and associated storage area at No 29 Evandale Street, Floreat.
62 In undertaking this review, the Tribunal has examined the respective positions of the parties, the background to the proposal, the relevant legislative and policy provisions, the substance of a previous Ministerial decision for a broadly similar proposal and the matter of precedent.
63 The position of the applicant is that a Ministerial approval has already been given, that the RDG provide for a variation to standards, that the adjoining neighbour to the east at No 27 Evandale Street supports the proposal, and that there are similar developments nearby. Also, that the construction of a double garage will minimise the current unsightly impact of vehicles parked on-site and will not adversely affect the overall amenity of the area.
64 The position of the respondent is that the proposed development is contrary to the orderly and proper planning of the locality, that it will have a detrimental impact on the amenity of the streetscape and that it would be inconsistent with the relevant provisions of the Codes and the RDG. Also, that an approval would set an undesirable precedent and that there is scope for a visually permeable carport which could be made secure with open-style grilles and a more open aspect to the street.
65 In examining this matter, the Tribunal is concerned to determine whether the proposal, if approved, would be contrary to the orderly and proper planning of the locality and whether an approval would be likely to create un undesirable precedent and threaten the respondent's prime objective of maintaining an open streetscape in this locality.
(Page 18)
66 The Tribunal was assisted by an on-site view on 5 December 2007 at which Senior Sessional Member Graham attended in company with the parties.
67 The open nature of the streetscape was in evidence with wide street verges, and with most residences set well back from the front boundary. The residence on the subject land is set back some 10.5 metres from the front boundary and approximately 16.0 metres from the road pavement.
68 It was also clear that the existing residence, at some 16.5 metres wide, occupied most of the frontage of the subject land at 18.6 metres wide. There was, therefore, no opportunity for any development on either side of the residence, and a double garage, or carport, would need to be positioned in front of the existing residence.
69 Again, it was obvious that if a double garage was to be set back the 6.0 metres required by the RDG, it would not be possible to accommodate a medium to large size vehicle without some demolition of the existing home.
70 A double garage, as proposed, would need to be positioned forward of the 6.0 metre setback to a point at, or around, 4.5 metres from the front boundary. This was the setback determined by the Hon Minister in his decision of 24 November 2000.
71 It would, however, be possible to position the proposed garage 1.0 metre away from the side boundary as required by the Codes, rather than on the boundary with a parapet wall. The effect of this action, though, would be the loss of some front garden space and to partially block the eastern front window of the residence.
72 An examination of the RDG (cl 2.1.1) shows that under the performance criteria, new development should be compatible with the line and pattern of setback in the street and that any reduction in setback should not adversely impact the pattern of development in the street. Also, that visual separation is maintained between buildings and adjoining properties.
73 As the relevant acceptable development provisions require a 6.0 metre setback, which cannot be achieved as explained in [69] above, the matter needs to be assessed under the relevant performance criteria of the RDG.
(Page 19)
74 An examination of the Codes shows that new development should closely conform to the established street setback, and should be open to obtain a clear view of the building and vice versa. Garages are not acceptable unless they can be accommodated without obstruction to views between the street and house at ground level.
75 However, in the case under review, it is not entirely possible to achieve these ambitious broad-based objectives although, with the double garage positioned on the eastern lot boundary, the views between the street and the house are still predominantly maintained.
76 In examining the Streetscape Requirements of the Codes, there appears to be some flexibility in the broadly worded performance criteria of "the setting back of carports and garages so as not to detract from the streetscape …". For boundary setback requirements, the performance criteria for buildings built up to the boundary broadly require making effective use of space and not having any significant adverse effect on the amenity of the adjoining property. In this case, the adjoining neighbour raised no objection to the proposal.
77 For buildings set back from a boundary, such as positioning the double garage 1.0 metre from the eastern side boundary, there is an emphasis in the performance criteria of ensuring adequate direct sun and ventilation to the development site and the adjoining property; also, to assist in ameliorating the impacts of building bulk on adjoining properties and to assist in protecting privacy between adjoining properties.
78 In making an assessment of this matter, it is the case that Evandale Street is characterised by wide street verges with most residences well set back from their front boundaries.
79 In her submissions, the applicant argues that not all residences in Evandale Street are set back as far (10.5 metres) as her own home on the subject land. An examination of her photograph No 4 (No 57 Evandale Street) supports the applicant's contentions.
80 A point needs to be made here that if a planning application was to be lodged at some future date to extend the existing residence forward from a 10.5 metre setback to a 6.0 metre setback, then such a proposal would accord with the acceptable development provisions of the RDG. A double garage set back 4.5 metres from the front boundary would then project 1.5 metres only forward of the extended residence.
(Page 20)
81 On the question of building bulk, and the likely effect of the proposal on the amenity of the neighbour having to face an 8.0 metre long blank garage wall, the Tribunal would acknowledge that the impact could be lessened slightly by the structure being positioned 1.0 metre away from the side boundary.
82 However, it is also the case that there is an existing carport at No 27 Evandale Street that is located 4.5 metres back from the front boundary, and would be close to, and parallel to, the proposed double garage. The adverse impact of an 8.0 metre long solid wall would therefore be lessened to a degree by the presence of the existing carport.
83 On the question of the proposed development affecting direct sunlight and ventilation to No 27 Evandale Street, it is the case that the property is located at the corner of Evandale and Birkdale Streets, and faces due north. It would receive ample sunlight in the morning in particular, and a garage on the boundary with a 2.7 metre high wall is unlikely to have a significant effect, even in the mid to late afternoon. However, there are no shadow diagrams available to the Tribunal to assist in this analysis.
84 The difficulty in moving the structure 1.0 metre off the common boundary would be to block some views from the easternmost window of the residence of the subject land. Also, there would be some loss of garden space.
85 A further related matter is that if the joint development had proceeded after the Ministerial decision in 2000, there would now be double garages set back 4.5 metres from the front boundaries on both No 27 and No 29 Evandale Street. They would exist side by side.
86 On the question of the advantages or otherwise of carports over garages, it is the case, as argued by the respondent, that carports provide a more open aspect to the street. However, they do not, even with open-style grilles, provide the same sense of security as a garage.
87 It is the responsibility of the Tribunal to weight up the merits of these arguments in the circumstances of this case.
88 On the matter of precedent, the applicant provided a number of examples close by to support her case. But a number of the examples were built prior to the promulgation of the RDG, and in that sense, are of limited value to the Tribunal.
(Page 21)
89 What can be said is that none, or very few, of the examples equate to the open landscape of the subject land, or the adjoining lot to the east.
90 On balance, the Tribunal believes that the wide verge and 10.5 metre setback to the residence on the subject land provides a high degree of openness that goes beyond that of many of the residences in Evandale Street. There is, therefore, a degree of flexibility available to the Tribunal to allow development within that setback without compromising the overall openness of the immediate locality, or detracting from the streetscape.
91 The Tribunal accepts that a double garage to accommodate medium to large vehicles could not be built with a 6.0 metre setback, but could be accommodated with a 4.5 metre setback as proposed.
92 Again, the Tribunal believes that the building could be constructed on the boundary with a parapet wall because it will not compromise the amenity of the adjoining neighbour to any significant degree, and will avoid positioning the garage to restrict views to the street from the eastern front window.
93 On the matter of precedent, the Tribunal accepts that some landowners may attempt to achieve a garage development on their property. But each case needs to be treated on its merits, and the circumstances relating to the subject land may be difficult to replicate.
94 It is the Tribunal's view that an approval would not be contrary to orderly and proper planning, would not seriously affect the amenity of the adjoining owner to the east and would be unlikely to create an undesirable precedent.
95 The application for review is upheld, subject to conditions.
Orders
96 For the foregoing reasons, and in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
1. The application for review is upheld, subject to the proposed development being substantially commenced within a period of two years from the date of this determination, and subject to the following conditions:
(i) All property stormwater to be retained on site;
- (ii) The parapet wall to the boundary being finished in flush brickwork, or rendered and painted to the satisfaction of the Town of Cambridge.
I certify that this and the preceding [96] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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