LETIZIA and TOWN OF EAST FREMANTLE
[2007] WASAT 159
•21 JUNE 2007
LETIZIA and TOWN OF EAST FREMANTLE [2007] WASAT 159
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 159 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:125/2007 | 5 JUNE 2007 | |
| Coram: | MS M CONNOR (MEMBER) | 21/06/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The application for review be dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | DAVID JAMES LETIZIA TOWN OF EAST FREMANTLE |
Catchwords: | Local government – Crossing from a public thoroughfare to private land – Review of objection to refusal of a 6 metre wide crossover – Application of policy in view of merits of the proposal – Manoeuvrability and vision – Streetscape – Precedent |
Legislation: | Local Government Act 1995 (WA), s 9.5, s 9.60, s 9.6(1), s 9.7(2) Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 12, reg 14(2) Residential Design Codes of Western Australia (2002), cl 3.5.2 Road Traffic Act 1974 (WA) |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : LETIZIA and TOWN OF EAST FREMANTLE [2007] WASAT 159 MEMBER : MS M CONNOR (MEMBER) HEARD : 5 JUNE 2007 DELIVERED : 21 JUNE 2007 FILE NO/S : DR 125 of 2007 BETWEEN : DAVID JAMES LETIZIA
- Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Local government – Crossing from a public thoroughfare to private land – Review of objection to refusal of a 6 metre wide crossover – Application of policy in view of merits of the proposal – Manoeuvrability and vision – Streetscape – Precedent
Legislation:
Local Government Act 1995 (WA), s 9.5, s 9.60, s 9.6(1), s 9.7(2)
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 12, reg 14(2)
Residential Design Codes of Western Australia (2002), cl 3.5.2
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Road Traffic Act 1974 (WA)
Result:
The application for review be dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Ms J Letizia (Acting as Agent)
Respondent : Mr C Slarke
Solicitors:
Applicant : N/A
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 Mr David Letizia applied to the State Administrative Tribunal for review of the Town of East Fremantle decision to dismiss an objection made under s 9.5 of the Local Government Act 1995 (WA) to the refusal of a 6 metre wide crossover on Lot 25 (No 165) Petra Street, East Fremantle.
2 The Town of East Fremantle had formally adopted Policy 123 as guide to decision-making on crossovers within the Town of East Fremantle and had consistently applied the policy since its adoption in 1994. Policy 123 provides for the standard crossover width of 3 metres and set outs where discretion may be exercised to permit wider crossovers, such as at the crest of a hill.
3 The Tribunal considered that in determining whether discretion should be exercised to approve the proposed 6 metre crossover, the intent of the policy and the desires of the respondent in limiting crossover width should be carefully weighed against the merits of this particular application.
4 The applicant addressed a number of reasons for supporting a wider crossover, which included traffic safety, streetscape and precedent. In order to gain full appreciation of the issues, a view was held during the hearing.
5 The Tribunal found that the site conditions of the subject land were such that they did not necessitate or support an increase in the width of the crossover for manoeuvrability or safety reasons. Further, the view confirmed that generally, crossovers in the locality were consistent with the policy and where there was departure there were historical or practical reasons for such departure. The Tribunal did not consider aesthetic appeal, convenience and practicality as sufficient grounds for supporting a departure from the standard width advocated by Policy 123. The decision of the respondent was reaffirmed.
Introduction
6 Mr David James Letizia (applicant) made a planning application to the Town of East Fremantle (respondent, Town or Council) in August 2006, for approval to construct a 6 metre wide crossover on Lot 25 (No 165) Petra Street, East Fremantle (subject land). As the proposal involves crossing from a public thoroughfare to private land, the
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- matter was determined correctly by the respondent under reg 12 of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (Regulations).
7 The application was refused under delegated authority of the respondent's Chief Executive Officer on 31 August 2006.
8 On 4 September 2006, the applicant provided additional supporting information and requested that the matter be reconsidered. The matter was reconsidered by the Chief Executive Officer and, in effect, the previous decision was reiterated.
9 A further application incorporating further justification for the same proposal was made on 12 December 2006. This matter was treated as a "fresh application" and on 1 February 2007, the application was refused under delegated authority of the Chief Executive Officer.
10 On 23 February 2007, Ms Jacea Letizia, as agent for the applicant, lodged an objection under s 9.5 of the Local Government Act 1995 (WA) (LG Act) to the refusal of a 6 metre wide crossover on the subject land. In accordance with s 9.6(1) of the LG Act, the objection was dealt with by the Council at its meeting of 20 March 2007, where the Council resolved as follows:
"The objection be dismissed, on the following grounds:
1. none of the applicants grounds of objection have been upheld, for the reasons given in the officer's report.
2. no arguments have been presented which would justify a variation to Council's Policy 123 to allow an increase in crossover width to 6 metres.
3. a crossover 3.5 metres wide is considered sufficient for the purposes of providing safe and practical access to and from 165 Petra Street, including the driveway and garage which is to be constructed."
11 The applicant, on 25 April 2007, made application under s 9.7(2) of the LG Act to have the decision reviewed.
Subject land
12 The subject land is more particularly described as Lot 25 on Plan 1794 comprised in Certificate of Title Volume 2132 Folio 441. In
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- June 2003, the Western Australian Planning Commission granted conditional approval for the subdivision of the subject land into two survey strata lots. The subdivision has been effected and the subject land is now the subject of Strata Plan 50144.
13 The existing dwelling, to which the proposed crossover is to service, is located on survey strata Lot 1. The respondent, in February 2006, granted condition approval for the construction of a double carport at the front of the existing dwelling. The plan shows the crossover as being 2.6 metres at the boundary widening to approximately 3.9 metres at the road pavement and an annotation that states "existing crossover to remain".
14 The rear survey strata lot (Lot 2) gains its access from a battleaxe leg on the northern part of the subject land, which is a common property lot on the Survey Strata Plan (see Attachment 1). The battleaxe leg is generally 4 metres in width, but is truncated at the boundary with Petra Street to a width of 7.0 metres. According to the evidence of Mr Stuart Wearne, who is the Chief Executive Officer, the crossover for Lot 2, when constructed, will be only 3 metres in width at the property boundary, widening to 4 metres at the road pavement.
15 The midpoint of Petra Street is the dividing line between the municipalities of the Town of East Fremantle and the City of Melville. Lots located on the western side of Petra Street, such as the subject land, lie within the Town of East Fremantle, whereas the lots on the eastern side of Petra Street are located within the City of Melville.
Regulatory framework
16 The Regulations came into operation on 1 July 1996 and pursuant to s 9.60 of the LG Act, these regulations apply as if they were local laws made by each local government. Regulation 12 provides for "[c]rossing from public thoroughfare to private land or private thoroughfare" and states:
"(1) Upon the application of the sole owner, or a majority of the owners, of private land the local government may, subject to regulation 14(2) —
(a) approve the construction, under the supervision of, and to the satisfaction of, the local government, of a crossing giving access from a public thoroughfare to —
- (i) the land; or
(ii) a private thoroughfare serving the land;
or
- (b) agree to construct for the applicant a crossing giving access from a public thoroughfare to —
(i) the land; or
(ii) a private thoroughfare serving the land."
" ... guide Council officers in making delegated decisions and to guide Council when considering requests for individual exemptions from the Policy which may or may not be granted – based on an assessment of topography, trees, existing pavement, surrounding land uses, trip demand, … and other matter Council and/or any of its advisory committees consider relevant."
18 Section 3 of Policy 123 provides for crossovers and the relevant provisions related to this application are as follows:
"3.1 Standard crossover width will be 3 metres.
3.2 Chief Executive Officer has delegated authority to determine requests for variations to the Policy in relation to crossovers.
3.3 Council may give consideration to wider crossovers at the crest of hills to facilitate access and egress."
Issue
19 At the beginning of the hearing, the respondent confirmed its position to support an increase in the crossover width to 3.5 metres. The respondent contended that Policy 123 establishes the standard crossover width within the Town as 3 metres and argued that there are no compelling reasons to justify any further departure from the standard crossover width.
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20 The efficacy of Policy 123 was not in dispute but rather the application of the policy. The applicant argued that the respondent's approach in applying the policy was inflexible and that given the merits of this particular application discretion should have been exercised and the 6 metre crossover approved. The applicant's arguments for supporting an increase in the crossover width included the following:
• no objection from neighbours;
• no verge or street trees are impacted;
• improved manoeuvrability and vision from the subject land, which is located on a main artery and just downhill from what was a "black spot" intersection (View Terrace/Petra Street);
• the locality has no shortage of street parking and the remaining grassed verge is sufficient enough for new verge tree(s) or car parking'
• other 6 metre crossovers have been approved within the immediate and surrounding locality;
• clause 3.5.4 of the Residential Design Codes of Western Australia (2002) is satisfied;
• aesthetic design and improvement to streetscape as the verge area will be grassed and maintained by the applicant; and
• practical, convenient and safe.
Tribunal considerations
21 The Tribunal accepts that Policy 123 has been formally adopted as a policy by the respondent to guide decision-making on crossovers within the Town and that this policy has been consistently applied since its adoption in 1994. It is also acknowledged that the policy has been reviewed and revised several times since its inception; indicating that it is a "living" policy.
22 Policy 123 provides for the standard crossover width as 3 metres and sets out where discretion may be exercised to permit wider crossovers, such as at the crest of a hill. The basis for the standard width being 3 metres is not addressed in Policy 123, however, the respondent in its
(Page 8)
- evidence considered the following matters to be relevant to the desire of the respondent to limit crossover widths generally to 3 metres:
"(i) visual amenity – planted 'green verges' are considered more attractive than 'hardstand' crossovers. As a general rule a wider crossover will equate to reduced visual amenity;
(ii) a wider crossover, like any hardstand area, increases the demand on the Town's drainage system;
(iii) hardstand crossovers contribute to the generation of heat;
(iv) crossovers give rise to construction and maintenance costs for the Town, and the greater the size of the crossover, the greater the potential cost;
(v) the safety of pedestrian movements on public footpaths is a priority and a limitation on the size and number of crossovers assists in that regard;
(vi) widened crossovers reduce the options available for street tree planting and can also adversely affect the installation of maintenance of public utilities/services; and
(vii) wider crossovers reduce street parking."
24 The applicant addressed a number of reasons for supporting a wider crossover, including traffic safety, streetscape and precedent. In order to gain a full appreciation of the issues, a view was held during the hearing.
25 The evidence relating to traffic flows along Petra Street indicates that the amount of traffic using the road is well within the road's capacity as a "local distributor road" and that 80% of the traffic travelling along that section of Petra Street drive at 50 kilometres per hour or less. Furthermore, the subject land is located approximately 50 metres from the roundabout at the intersection of Petra Street/View Terrace, and both the photographs produced in evidence and the view confirmed that there are no sight distance impediments that would require the width of the crossover to be increased.
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26 The applicant contended that the proposal would not adversely affect the amenity of the locality, as there were similar such crossover within the immediate locality. The applicant produced a plan showing the lots with increased crossovers in the immediate locality (refer to Annexure D of Exhibit 1) and a list of other properties within the Preston Point Ward of the Town with crossovers wider than 5.4 metres (refer to Annexure C of Exhibit 1). The respondent did not attempt to address any of the properties contained in the list as it considered these properties to be outside the area of relevance. In relation to the plan of the immediate locality, the respondent pointed out that the crossovers located on the eastern side of Petra Street are within the City of Melville and subject to different requirements. The evidence shows that the East Fremantle section of Petra Street, between View Terrace and Preston Point Road, contains 13 crossovers, 11 of which are 3-3.5 metres wide. The two crossovers which are wider are situated closest to Preston Point Road. It is noted that there are a number of wider crossovers located on the eastern side of Petra Street, and in particular two located adjacent to the subject land.
27 The applicant made specific reference to a number of properties with wider crossovers as precedent supporting the subject application. The evidence revealed the following about each of the properties:
• No 11 Munroe Street – approved by respondent because of safety issues (sight line distances) due to topography and bend in road.
• No 157 Petra Street – property located on crest of hill and application approved by respondent prior to adoption of policy.
• Nos 179 Petra Street – originally approved by respondent in 1994 around the period of the adoption of policy. The proposal did not proceed and a further approval was issued in 1997 notwithstanding the adoption of the policy in 1994.
• Adjacent lots on the eastern side of Petra Street – these crossovers are within the City of Melville and subject to different requirements.
• Nos 56a and 56b View Terrace – both applications were originally approve at 3.5 metres. Initially, the respondent contended that both crossovers were non-compliant with
- the approval issued. However, after further investigation, it would appear that the owners of No 56a View Terrace were advised by an officer that a 4 metre wide crossover was approved. Notwithstanding, the circumstances surrounding these lots are completely different from the subject land. The land falls steeply from road level and the gradients of the driveways may well require a wider crossover to allow for safe manoeuvring onto the road.
- • No 3 Alcester Street – approved by respondent as there were safety and access issues.
28 There is no doubt, from the evidence that the main reasons for the wider crossover include aesthetic appeal (in that the approved 6 metre driveway will align with the 6 metre crossover), convenience and practicality. The Tribunal does not consider these reasons alone to be sufficient grounds for supporting a departure from standard width advocated by Policy 123. Furthermore, the applicant's reference to the Codes is misguided in this instance, as the Codes relate to the development with in the boundaries of the lot and consider impact on adjoining land. The Codes are not intended to address crossovers other than to ensure that the proposed development on the subject lot is designed to minimise the number of crossovers.
29 The evidence shows the site conditions of the subject land are such that they do not necessitate or support an increase in the width of the crossover for manoeuvrability or safety reasons. Further, the view confirmed that generally crossovers in the East Fremantle area were consistent with the policy and where there was departure (for those considered by the Tribunal) there were historical or practical reasons for such departure. A number of wider crossovers exist on the eastern side of Petra Street, however, they are within the City of Melville and the Tribunal recognises that the objectives of the Town and the City of Melville may differ and as such a different approach may be taken when considering crossover widths. In this instance, the Tribunal does not consider a wider crossover is warranted and as such, the decision of the respondent should be reaffirmed.
Orders
30 For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
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- 2. The decision of the respondent is affirmed.
Attachment 1
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I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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