LOIACONO and CITY OF SOUTH PERTH - [2014] WASAT 114

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LOIACONO and CITY OF SOUTH PERTH [2014] WASAT 114

MEMBER: MS L WARD (MEMBER)

HEARD: 23 JULY 2014

DELIVERED : 28 JULY 2014

PUBLISHED : 3 SEPTEMBER 2014

FILE NO/S: DR 132 of 2014

BETWEEN: RICHARD LOIACONO
Applicant
AND
CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning Development application Includes double garage forward of building line and in front setback - Granted subject to condition Carport in setback area acceptable Site layout limits location of double garage No cogent reason to depart from policy - Policy on front setbacks for garages Streetscape Visual dominance of double garage Exercise of discretion

Legislation:

City of South Perth Town Planning Scheme No 6, cl 3.1, cl 4.1, cl 7(a), cl 7(b), cl 7.5, cl 9.6, Sch 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2013)
State Administrative Tribunal Act 2004 (WA), s 29(1)
Town Planning and Development Act 1928 (WA)

Result:

Application for review dismissed
Decision of respondent affirmed

Summary of Tribunal's decision:

Mr Loiacono applied to the State Administrative Tribunal for review of the City of South Perth's decision to impose a condition on the construction of a double garage within the front setback area at No 10 Susan Street, Kensington. The condition being that the double garage be deleted from the proposal or that it be converted to a carport. The applicant's double garage proposal contravenes several aspects of the City of South Perth's planning framework. Accordingly, the main issue that arose for determination in this matter was whether any discretion should be exercised to approve a double garage which is forward of the building line and within the front setback.
In determining the issue, the Tribunal noted that Susan Street is a culdesac with a traditional residential streetscape. The overwhelming majority of the homes in the street are older established homes. Most homes in Susan Street have a front setback of 6.5 metres or more. In considering the application for review in the context of the City of South Perth's local planning framework and in the context of the streetscape in Susan Street, Kensington, the Tribunal found that the proposal did not warrant approval. Accordingly, the application for review was dismissed and the respondent's decision to impose the above condition on the relevant planning approval was affirmed.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr S Naidu (Acting as Agent)

Solicitors:

Applicant: N/A
Respondent: City of South Perth

Case(s) referred to in decision(s):

Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Crisp and Town of Cambridge [2014] WASAT 71
Tafti and City of Subiaco [2012] WASAT 68

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 20 January 2014, Mr Richard Loiacono (applicant) applied to the City of South Perth (City or respondent) for planning approval for the development of 'Single Storey Additions to an Existing Single Storey Dwelling' at No 10 Susan Street, Kensington (site).
The application for planning approval included the addition of a double width garage with a front setback of 4.5 metres from the Susan Street frontage, with the remainder of the original home being set back a distance of at least 7.5 metres.
The application was approved on 25 March 2014 subject to a number of conditions, including condition 1 which relates to the proposed double garage.
Condition 1 states that:
1.Revised drawings shall be submitted to the City's satisfaction as part of a building permit application; such drawings shall incorporate the deletion of the proposed Garage and subsequent boundary wall OR conversion of the proposed Garage to a 'Carport' as defined by the 2013 Residential Design Codes of Western Australia.
The issue to be determined in this matter is whether the proposed double garage is appropriate in the context of the relevant planning framework.
The applicant's main contention is that two homes in Susan Street and several homes in the wider 'Kensington' precinct already have buildings in front setbacks of 4.5 metres or less.

Decision under review

The applicant seeks a review of the decision made by the City on 25 March 2014 to impose condition 1 on the approval granted for the site. The applicant has standing to apply for review, and the Tribunal has jurisdiction under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to hear the application for review of the City's decision.

Proceedings in the Tribunal

The application for review was lodged in the Tribunal on 22 April 2014. The matter was referred to onsite mediation on 11 June 2014. As the matter was not resolved at mediation, a final hearing was held in the Tribunal on 23 July 2014.
The applicant and Mr Siven Naidu, the Senior Planning Officer at the City, both made submissions at the final hearing. The Tribunal accepted into evidence all of the documents provided by the parties (Exhibits 1 to 3).
On 28 July 2014, the Tribunal delivered its decision in this matter. At that time, the Tribunal indicated that the reasons for decision would follow.

Site and surrounds

The site is in a cul‑de‑sac with homes numbered 1 ‑ 13 Susan Street, Kensington. Susan Street, Kensington intersects Gwenyfred Road, Kensington. The site has an area of 693m² and it faces Susan Street to the east. The Tribunal has the benefit of a colour aerial photograph of Susan Street and the immediate surrounds, which comprised part of the City's bundle of documents. The street is characterised by predominantly single storey, single houses. Nos 11 and 13 Susan Street are the only homes in Susan Street containing a garage with a front setback of less than 6 metres. The remaining nine homes in Susan Street all have front setbacks of at least 6 metres.
Currently, Nos 8, 11 and 13 Susan Street are the only homes which have been demolished and rebuilt in Susan Street. All homes in Susan Street are single storey, with the exception of No 13.
The dwelling at the end of the cul‑de‑sac, No 13 Susan Street, has several features which distinguishes it from the other homes in the cul‑de‑sac. Firstly, No 13 Susan Street is located in the Town of Victoria Park, rather than in the City. Secondly, No 13 Susan Street is a two storey home. Thirdly, No 13 Susan Street has a front setback of less than 6 metres.
No 11 Susan Street, Kensington is diagonally opposite the site towards the end of the cul‑de‑sac. No 11 Susan Street also has a front setback of less than 6 metres. The City approved the building in the front setback at No 11 Susan Street in 2004.

Double garage proposal

The applicant's proposal in relation to the double garage requires the demolition of part of the existing single garage which is alongside the existing dwelling, together with the boundary wall. The existing single garage is set back more than 6 metres from the street alignment. Following the demolition of part of the single garage, the applicant's proposal is to build a new double garage on the northern boundary at a front setback of 4.5 metres from the Susan Street boundary. The proposed double garage will be forward of the building line.
The planning officer from the City notes in the report to the City's councillors that 'there is no practical location for a double garage at the existing garage setback due to insufficient space between the main dwelling and northern lot boundary'.

Issue

The issue for determination by the Tribunal is whether or not the applicant's proposal for a double garage forward of the building line and in the front setback area is appropriate in the context of the local planning provisions.
The parts of the City's planning framework relevant to the applicant's proposal are set out in greater detail below.

City of South Perth Town Planning Scheme No 6

The site is zoned Urban under the Metropolitan Region Scheme. The site is within the local government district of the City and therefore it is subject to the City of South Perth Town Planning Scheme No 6 (TPS 6).
The preamble to TPS 6 states:
The City of South Perth Town Planning Scheme No. 6 consists of this Scheme Text and the Scheme Maps. The Scheme Text should be read in conjunction with the Local Housing Strategy and Local Commercial Strategy for the City, Heritage List, Precinct Plans and other Planning Policies[.]
By virtue of s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal has the same jurisdiction, functions and discretions as those of the City under TPS 6.
The site is zoned Residential under cl 3.1 of TPS 6 with a residential density coding of R15. A single house is a 'P' (Permitted) Use within a residential zone under Table 1 'Zoning Land Use' of TPS 6.
Under cl 7.5 of TPS 6, in 'considering an application for planning approval, the Council shall have due regard to' a number of matters including:
(a)the objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan and the Metropolitan Region Scheme;
…
(f)any planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme;
…
(n)the extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details[.]
Pursuant to cl 4.1 of TPS 6, the development of the site is also subject to the Residential Design Codes of Western Australia (2013) (Codes). The Codes include the following relevant definitions:
Carport
A roofed structure designed to accommodate one or more motor vehicles unenclosed except to the extent that it abuts a dwelling or a property boundary on one side, and being without a door unless that door is visually permeable.
Garage
Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles and attached to the dwelling.
In addition to relevant provisions of TPS 6, the parties referred the Tribunal to the following of the City's local planning policies:
a)Policy P350.2 Residential Boundary Walls; and
b)Policy P351.5 Streetscape Compatibility Precinct 5 'Arlington' and Precinct 6 'Kensington'.
Both of the above planning policies have been adopted by the Council under the provisions of cl 9.6 of TPS 6, according to the City. Accordingly, the Tribunal 'shall' have due regard to both policies when considering the application for planning approval as required by cl 7.5(f) of TPS 6.

Policy P350.2 Residential Boundary Walls

Policy P350.2 Residential Boundary Walls (Boundary Wall Policy) was adopted by the City on 25 November 2008 and it applies 'to all boundary walls forming part of a residential development' (clause 4 of the Boundary Wall Policy).
The rationale for the Boundary Wall Policy is:
The setback of dwellings from the side and rear property boundary is a key factor in ameliorating the sense of building bulk. Therefore, when considering development proposals incorporating boundary walls, the amenity impact of such walls requires careful consideration. (Tribunal emphasis)
Clause 7 of the Boundary Wall Policy states:
Setback from the street alignment of a wall on a side boundary
(a)Subject to clauses 6 and 8(b) of this Policy, approval will not normally be granted for a boundary wall, including any 'nib' projection, to be set back less than 6.0 metres from the street alignment, or less than the setbacks prescribed by Table 2 of TPS6, whichever is the greater.
(b)Subject to compliance with the setbacks from specified streets prescribed in Table 2 of TPS6, a setback of less than 6.0 metres, but in any case not less than 4.5 metres, may be approved where:
(i)specified in a Precinct‑based policy; or
(ii)the proposed boundary wall will abut an existing boundary wall on the adjoining lot, and the proposed wall will not project beyond the adjoining boundary wall either vertically or horizontally.
Table 2 of TPS 6 is headed 'Setbacks from Specified Streets for Residential Uses'. Susan Street, Kensington is not one of the streets specified in Table 2 and therefore the setbacks listed do not apply to this matter.
Clause 7(a) of the Boundary Wall Policy generally requires a boundary wall to be set back not less than 6 metres from the street alignment. Clause 7(b) of the Boundary Wall Policy permits a setback of 'not less than 4.5 metres' in the circumstances specified in it. The parties agree that the circumstances specified in clause 7(b) of the Boundary Wall Policy do not apply to this matter. In particular, the proposed boundary wall will not abut an existing boundary wall on the adjoining lot.
The northern wall of the proposed double garage is a 'boundary wall' as defined in the Sch 1 definitions of TPS 6. The proposed double garage is located on the boundary between Nos 10 and 12 Susan Street. The proposed double garage has a front setback of 4.5 metres.

Policy P351.5 Streetscape Compatibility Precinct 5 'Arlington' and Precinct 6 'Kensington'

Policy P351.5 Streetscape Compatibility Precinct 5 'Arlington' and Precinct 6 'Kensington' (Precinct 6 Streetscape Compatibility Policy) was adopted by the City on 22 May 2012 and it applies 'to all land zoned Residential within … Precinct 6 "Kensington"' ('Policy Scope' of the Precinct 6 Streetscape Compatibility Policy).
As set out above, Susan Street, Kensington is within Precinct 6 'Kensington'.
The objectives of the Precinct 6 Streetscape Compatibility Policy are expressly stated to include:
1.To preserve or enhance desired streetscape character, by ensuring that new residential development has bulk and scale that is compatible with the streetscape within which it is located.
…
4.To identify the extent of nearby development to be taken into consideration when assessing the streetscape compatibility of proposed residential development.
The Precinct 6 Streetscape Compatibility Policy applies to 'new residential developments'. The policy also defines a number of terms, including the 'Immediate Assessment Area' (IAA) and the 'Wider Assessment Area' (WAA).
Subclause 4(a) of the Precinct 6 Streetscape Compatibility Policy states:
SETBACKS
Averaging of the primary street setback prescribed in Table 1 of the R‑Codes is not permitted unless the primary street setbacks of the existing dwellings on each side of the development site fronting the same street, are less than the primary street setback prescribed in Table 1.
In relation to subclause 4(a) of the Precinct 6 Streetscape Compatibility Policy, the applicant accepts that the setbacks on both Nos 8 and 12 Susan Street, being the existing dwellings on each side, are not less 'than the primary street setback prescribed in Table 1'.
Clause 6 of the Precinct 6 Streetscape Compatibility Policy states:
CAR PARKING
(a)Garages are to be set back in line with the ground storey façade of the dwelling or further.
(b)Visually permeable single and double carports that enable views of the dwelling to be maintained from the street are permitted within the front setback area as depicted in Figure 8 ‑ Carports in Front Setback Area.
The applicant accepts that, as the proposed double garage projects forward of the existing dwelling façade, it does not satisfy subclause 6(a) of the Precinct 6 Streetscape Compatibility Policy.

Position of the parties

City

The City submits that the applicant's proposal is a significant departure from the relevant local planning policies and the relevant parts of TPS 6. Acceptance of the variation would set a precedent which is contrary to the express policy objectives of the Precinct 6 Streetscape Compatibility Policy.
The boundary wall to the proposed double garage does not comply with clauses 7(a) or 7(b) of the Boundary Wall Policy due to it having a proposed front setback of 4.5 metres, and it would not abut an existing boundary wall at the neighbouring property, No 12 Susan Street.
The proposal does not comply with subclause 4(a) of the Precinct 6 Streetscape Compatibility Policy, 'averaging of front setback'. In particular, the City noted that the site's neighbouring properties, Nos 8 and 10 Susan Street, have front setbacks of 5.8 metres and 7.0 metres respectively. A review of the western side of Susan Street shows that there are no garages or buildings forward of a minimum of 5.2 metres. On the eastern side of Susan Street, other than No 11 Susan Street, there are no garages or buildings forward of a minimum of 7.6 metres.
The proposal does not comply with subclause 6(a) of the Precinct 6 Streetscape Compatibility Policy, 'garage setback'. In particular, the City submitted that locating the garage in line with or behind the building setback line is a key element to reducing perceived building bulk. With the exception of No 11 Susan Street, the predominant streetscape character is of garages and parking structures beyond or in line with the building line of dwellings.
The City also submits that the applicant has a number of alternate options available to him which would satisfy the relevant policies and his desire for additional undercover parking. These options include building a double carport rather than a double garage or tandem parking.

Applicant

The applicant's evidence to the Tribunal was that he purchased the property in October 2013 with the intention to renovate and extend the existing home. The applicant stated that he observed a 4.5 metre setback on the home across the road at No 11 Susan Street and he assumed that he would be able to build something similar. The applicant contends that he has tried to minimise the impact of the double garage by setting it back from the street frontage as much as possible. He submits that currently there is no other practical way of positioning the proposed double garage on the block.
The applicant submits that the proposed garage is in keeping with the scale, form and shape, rhythm, colour and construction materials of the existing dwelling and that this is consistent with cl 7.5(n) of TPS 6.
As to the location of the garage in front of the existing dwelling and within the front setback area, the applicant submitted that, for the reasons summarised below, it is appropriate to depart from the respondent's policies and approve the garage as proposed. In summary, the applicant submits that the proposed double garage ought to be approved because it will have 'very minimal impact on the overall streetscape' due to:
•his property being just one house from the end of the cul‑de‑sac;
•the proposed double garage not protruding further than the existing foliage along the common boundary at No 12 Susan Street;
•garage setbacks of less than 6 metres already existing at Nos 11 and 13 Susan Street; and
•there being numerous other homes in the Kensington precinct with 4.5 metres or less setbacks.
According to the applicant, the above factors diminish the impact which his proposed double garage will have on the Susan Street streetscape.
The applicant provided the Tribunal with before and after photographs of homes at Nos 119 Gwenyfred Road, Kensington and 8 Susan Street (his neighbour) (Exhibit 3). The applicant submitted that the relevance of Exhibit 3 is that it shows that, in the area, if an owner wants a double garage, it may be easier to demolish an existing home rather than retain an existing home.

Consideration by the Tribunal

Clause 7.5(f) of TPS 6 requires that regard be had to the City's local planning policies. Clause 7.5(b) requires regard to be had to orderly and proper planning. As set out in Crisp and Town of Cambridge [2014] WASAT 71 (Crisp) at [24], the Tribunal is:
… required by the dictates of orderly and proper planning to give proper consideration to the local planning scheme and related planning policies that set out the planning objectives to be achieved. In doing this, it is important to have regard to the particular features of the proposed development and the locality where it will be sited.

In relation to the application of policy, 'it is well‑established planning principle that policy is to guide the exercise of discretion, but not to replace discretion'. That said, the relevant considerations are why a policy should not be applied and whether there are reasons to depart from the policy: Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 at [24]; and Crisp at [47].
The Tribunal will consider below the applicant's submissions in support of his application.
The applicant submitted that none of the above polices give any 'regard or discretion for existing character homes'. The Tribunal accepts that the objectives of the relevant policies focus on the 'bulk and scale' (Precinct 6 Streetscape Compatibility Policy) and 'building bulk' (Boundary Wall Policy) rather than the retention of existing character homes. Contrary to the applicant's submission, the main objectives of the relevant planning policies set out above are not to 'keep the heritage feel of the street'.
The applicant submitted that, because he is retaining the majority of his existing home, his proposal is not a 'new' development. However, in the Tribunal's view, the relevant policies do apply to all new developments. This is because the definition of 'development' in the Town Planning and Development Act 1928 (WA) includes the alteration of or addition to any building or structure on the land. Accordingly, the relevant policies do apply to the applicant's proposal to add a double garage as part of renovations to his existing home.
The applicant submitted that the foliage located along the boundary of the neighbouring property at No 12 Susan Street is relevant to the application of the Precinct 6 Streetscape Compatibility Policy. However, the foliage is not on the applicant's property and is not subject to his control. Therefore, the neighbour's boundary foliage is not a relevant planning consideration in this instance.
The IAA, as defined in the Precinct 6 Streetscape Compatibility Policy, applies only to clause 2 'Building bulk and scale ‑ storeys above ground storey' and clause 3 'Roof forms and eaves' of that policy. The applicant submits that the IAA is relevant to this proposal. However, neither clause 2 nor clause 3 of the Precinct 6 Streetscape Compatibility Policy is relevant to the applicant's proposal. Rather, clause 4, 'Setbacks' and clause 6, 'Car parking' of the Precinct 6 Streetscape Compatibility Policy are both relevant to the applicant's proposal and neither of those clauses refers to the IAA. Accordingly, under the Precinct 6 Streetscape Compatibility Policy, the Tribunal is not required to consider the IAA in relation to the applicant's proposal, although, as a general planning consideration, greater significance and weight is given to the surrounding development that is closest to the proposed development.
The Precinct 6 Streetscape Compatibility Policy which was adopted by the City on 22 May 2012 was not in place at the time when the garage at No 11 Susan Street was approved. The Precinct 6 Streetscape Compatibility Policy is clearly intended to prevent the post‑22 May 2012 streetscape from being visually dominated by garage doors within the front setback area. Obviously, the Precinct 6 Streetscape Compatibility Policy cannot alter the existing development at No 11 Susan Street. The Precinct 6 Streetscape Compatibility Policy is in place to influence the post‑22 May 2012 streetscape. The Susan Street, Kensington streetscape is not one of double garages. Rather, the western streetscape on which the applicant's property sits is entirely characterised by dwellings with parking structures in line with or behind the building line. The dwellings in Susan Street, Kensington are all single storey, and the overwhelming majority appear to be of a similar age to the applicant's dwelling. There appears to be a consistency to the presentation of the dwellings to the street, based on the photographs provided to the Tribunal. It also appears that low or no front fences dominate the streetscape and, as such, the front of the dwellings is visible from the street. In the Tribunal's view, Susan Street, Kensington represents a traditional residential streetscape. The prevailing setback is 6 metres or more in Susan Street, Kensington. As such, the existing development pattern in Susan Street is not dominated by building in the front setback area. Two of the 11 houses in Susan Street have garages in the front setback; however, these developments are the exception rather than the rule and they are both on the opposite side of the street to the site. The two houses at Nos 11 and 13 Susan Street are neighbours at the closed end of the cul‑de‑sac.
The site's relative proximity to the closed end of the cul‑de‑sac is less relevant, in the Tribunal's view, to, firstly, the dwellings immediately adjacent to the site and, secondly, the dwellings opposite the site. Not one of these four dwellings, namely, Nos 7, 8, 9 and 12 Susan Street, has any building within the setback area or in front of the building line. In the Tribunal's view, the proximity of these four dwellings and, in particular, Nos 8 and 12 Susan Street, indicates that building within the setback area is not compatible with the current streetscape.
In addition, in the Tribunal's view, the further a dwelling is from the site, the less relevance it has in terms of streetscape compatibility. Accordingly, the fact that building within the setback may take place on an exceptional basis in other streets in the Kensington precinct is of little relevance to the applicant's proposal. There is no evidence before the Tribunal as to when the particular homes, which were not identified by the applicant, were permitted to build within the setback. For example, the building may have been approved prior to 22 May 2012, being the date when the Precinct 6 Streetscape Compatibility Policy was formally adopted by the City.
In the Tribunal's view, the applicant's proposal will have a detrimental effect on the streetscape, as a double garage in the front setback will have a significant and visually dominant impact. The proposed double garage would protrude into the current front setback area and would not ameliorate the sense of building bulk. A double garage would provide a car parking arrangement which is uncharacteristic to Susan Street, particularly on the western side of Susan Street where the applicant's dwelling is situated.
The bulk and scale of the proposed double garage is not compatible with the streetscape within which it is located.
Having due regard to the relevant matters in cl 7.5 of TPS 6, especially cl 7.5(n), the proposal is not visually in harmony with the neighbouring buildings, particularly in terms of its scale, form and front setback.
Further, the fact that none of the applicant's neighbours object to the applicant's proposal is not, in the Tribunal's view, a sufficient reason to permit a departure from the relevant planning policies.
Having considered all of the above factors both individually and cumulatively, the Tribunal finds there is no cogent reason to depart from the City's local planning policies.

Conclusion

In considering the substantive merits of this particular case in light of the established local planning framework and in the context of the surrounding development, the Tribunal considers that it would be contrary to the orderly and proper planning of the locality and the streetscape compatibility, and therefore the amenity of the locality, to permit the construction of a double garage forward of the building line and in the front setback of the subject land: Tafti and City of Subiaco [2012] WASAT 68 at [38].

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L WARD, MEMBER