Lupsor and Anor and Town of Victoria Park
[2007] WASAT 170
•27 JUNE 2007
LUPSOR & ANOR and TOWN OF VICTORIA PARK [2007] WASAT 170
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 170 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:430/2006 | 12 MARCH 2007 WRITTEN CLOSING SUBMISSIONS 30 MARCH 2007 | |
| Coram: | MR J JORDAN (MEMBER) MR R EASTON (SENIOR SESSIONAL MEMBER) | 27/06/07 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the Town of Victoria Park to refuse the application to build four grouped dwellings on Lot 506 (No 173) Swansea Street East is affirmed | ||
| B | |||
| PDF Version |
| Parties: | PETRU LUPSOR VICTORIA PASCU TOWN OF VICTORIA PARK |
Catchwords: | Town planning – Development refusal – Grouped dwellings – Right of way at rear – No use of right of way for access to development – No overlooking of right of way – Council policy on using right of way for access – Residential Design Codes provisions for use of right of way for access – Standard of right of way – Council streetscape policy – Front setback – Noncompliance of development with policy – Impact on local amenity – Orderly and proper planning |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.3.2 A2, cl 3.4.1 A1, cl 3.5.2 A4.1, cl 3.5.4 A4.1, Table 1 Town of Victoria Park Town Planning Scheme No 1, cl 3(1), cl 7(3), cl 21(3), cl 36(5), cl 38(3) |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the Town of Victoria Park to refuse the application to build four grouped dwellings on Lot 506 (No 173) Swansea Street East is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LUPSOR & ANOR and TOWN OF VICTORIA PARK [2007] WASAT 170 MEMBER : MR J JORDAN (MEMBER)
- MR R EASTON (SENIOR SESSIONAL MEMBER)
- WRITTEN CLOSING SUBMISSIONS 30 MARCH 2007
- VICTORIA PASCU
Applicants
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Town planning – Development refusal – Grouped dwellings – Right of way at rear – No use of right of way for access to development – No overlooking of right of way – Council policy on using right of way for access – Residential Design Codes provisions for use of right of way for access – Standard of right of way – Council streetscape policy – Front setback – Noncompliance of development with policy – Impact on local amenity – Orderly and proper planning
(Page 2)
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.2 A2, cl 3.4.1 A1, cl 3.5.2 A4.1, cl 3.5.4 A4.1, Table 1
Town of Victoria Park Town Planning Scheme No 1, cl 3(1), cl 7(3), cl 21(3), cl 36(5), cl 38(3)
Result:
The application for review is dismissed
The decision of the Town of Victoria Park to refuse the application to build four grouped dwellings on Lot 506 (No 173) Swansea Street East is affirmed
Category: B
Representation:
Counsel:
Applicants : Selfrepresented
Respondent : Mr R Cruickshank (Acting as Agent)
Solicitors:
Applicants : Self-represented
Respondent : Town of Victoria Park
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 Mr Petru Lupsor and Dr Victoria Pascu applied to the Tribunal for a review of the refusal by the Town of Victoria Park to approve their application to develop four single storey grouped dwellings at No 173 Swansea Street East, East Victoria Park.
2 The Town of Victoria Park considered that the proposed development would be in conflict with its Streetscape Policy and the Residential Design Codes of Western Australia (2002). An objective of the Streetscape Policy is to develop rights of way in the Town of Victoria Park as secondary streets with dwellings facing onto and having access from them, and this was not proposed as part of the development. The proposed development was also considered to be too close to Swansea Street East.
3 The applicants were concerned that the poor standard of the right of way and the structures abutting it would have an adverse effect on the amenity of the proposed development. They believed that the development would enhance the streetscape of Swansea Street East.
4 The Tribunal noted that significant steps still had to be taken to upgrade the amenity of the right of way, but found that the Town of Victoria Park was consistently applying its policy and that it would be consistent with orderly and proper planning for the Town of Victoria Park's policy to be applied in this instance. The Tribunal also found that the relaxation of standards on the street frontage could not be supported.
5 The Tribunal dismissed the application for review and affirmed the Town of Victoria Park's refusal of the development.
Introduction
6 These proceedings involve an application brought by Mr P Lupsor and Dr V Pascu (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of Victoria Park (respondent or Council) made December 2006 to refuse development approval for four single storey grouped dwellings at Lot 506 (No 173) Swansea Street East, East Victoria Park (site).
7 The Tribunal had the benefit of a view of the site and the immediate locality including the rear right of way in the company of representatives of the parties. Also viewed were sites in Hubert Street and
(Page 4)
- Swansea Street cited by the applicants as precedents relevant to this review.
Site and locality
8 The site has a 20.20 metre frontage to Swansea Street East, a 20.20 metre frontage to a right of way at the rear, a depth of approximately 49.95 metres and an area of approximately 1005 square metres. The site is a trapezium as the front and rear boundaries are not parallel to each other. From front to rear is a fall of approximately 2.0 metres.
9 The rear right of way is 5.0 metres wide and unpaved. There was evidence that road base had been applied to provide a firm base for vehicles. The right of way can only be accessed from Milford Street to the south-east and terminates at a lot boundary near the north-western corner of the site.
10 At the time of the view, there were no grouped dwellings on lots adjoining the right of way. Fences adjoining the right of way were generally of medium to poor quality and the backyards visible from the right of way were of a standard to reflect the fencing. Single houses occupied the lots adjoining the site and to the rear. On the opposite side of Swansea Street East were a residential care facility, and a fruit and vegetable shop with an expansive bitumen parking area.
11 There has been some grouped dwelling development in the locality. Closest are two developments each of four units of two storeys, sited two lots and three lots to the north-west of the site at Nos 169 and 167 respectively. In both of these developments, all dwellings only have vehicular access from Swansea Street East. The right of way, however, does not extend to the rear of these lots.
Planning framework
12 The site is zoned "Residential R40" under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme) and "Urban" under the Metropolitan Region Scheme (MRS).
13 Clause 3(1) of TPS 1 states the Schemecomprises:
"(a) the Scheme Text;
(b) each of the precinct plans;
(Page 5)
- (c) each planning policy; and
(d) each Council Register."
14 The site is subject to the provisions of Plan 10 – Shepperton Precinct.
15 TPS 1 cl 7(3) provides that the Residential Design Codes of Western Australia (2002) (Codes) are to be read as part of the Scheme. Clause 21(3) provides that unless otherwise provided for in TPS 1, the development of land for residential purposes shall conform to the provisions of the Codes.
16 Clause 36(5) of TPS 1 lists matters to which Council is to have regard when determining an application. These include:
"(a) the provisions of this Scheme and any other written law applying within the Scheme Area including the Metropolitan Region Scheme;
(b) any relevant planning policy;
(c) any relevant precinct plan;
...
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality; and
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
17 Clause 38(3) of TPS 1 provides that the Council cannot approve a non-complying application unless it is satisfied that the development would be consistent with matters including:
• the orderly and proper planning of the locality;
• the conservation of the amenities of the locality;
• the statement of intent set out in the relevant Precinct Plan;
• the property in, and the inhabitants of, the locality;
(Page 6)
- and would not have an undue adverse effect on:
• the occupiers or users of the development; and
• the likely future development of the locality.
18 Council has adopted Local Planning Policy – Streetscape (Streetscape Policy). The introduction to the Streetscape Policy states:
"In accordance with [cl] 2.6.1 'Local Planning Policies Consistent With Codes' and [cl] 2.6.2 'Local Planning Policies' of the [Codes], the Town of Victoria Park has adopted the following Local Planning Policy to substitute the provisions of 'Element 2 – Streetscape' contained in the [Codes]."
19 The relevant provisions of the Streetscape Policy and the Codes are addressed below in the discussion on the issues raised in this matter.
20 During the hearing, the applicants referred to:
1) Western Australian Planning Commission (WAPC) Policy DC 2.6 Residential Road Planning;
2) WAPC's Planning Bulletin 33; and
3) The respondent's Policy 3.10: Vehicular Access to Properties Via a [Right of Way].
Proposed development
21 In July 2006, the applicants applied for development approval for four single storey grouped dwellings (Unit 1, Unit 2, Unit 3 and Unit 4), one behind the other from the front to the rear of the site. Unit 1 would front Swansea Street East with its own crossover to a double garage. Adjacent to this crossover would be a second crossover to a driveway, or communal street, along the south-eastern boundary providing vehicle and pedestrian access to the three other units.
22 Each unit would have a section of wall on the north-western boundary. Unit 4 at the rear would have sections of wall set back 500 millimetres from the right of way. The plans showed Unit 4 would not have access to, or windows in, habitable rooms overlooking the right of way.
(Page 7)
Respondent's decision
23 In a letter dated 7 November 2006, the respondent advised the applicants that their application had been refused. A notice attached to the refusal letter listed 14 reasons for refusal. The reasons referred to non-compliance with TPS 1 provisions concerning matters to be considered in determining planning applications, particularly non-complying applications; non-compliance with the Streetscape Policy; and non-compliance with various provisions of the Codes.
24 The reasons for refusal were further addressed by the parties when making submissions on the issues to be addressed in this matter. The issues addressed are identified below.
The issues
25 At the hearing, it became apparent that the parties, in identifying issues, were referring to an earlier set of drawings, different from those filed with the Tribunal. The drawings submitted to the Tribunal were dated July 2006, but a stamp on the drawings identified they were received by the respondent on 7 September 2006 to supersede plans received on 10 July 2006. A second stamp identified the drawings as refused on 7 November 2006. The drawings before the Tribunal included windows in the south-east wall of the garage to Unit 1 not shown in the earlier plans. The parties agreed that the drawings held by the Tribunal were correct and these overcame questions raised about blank side walls of the garage in the front setback.
26 The parties each listed issues they considered should be addressed. During the hearing, the parties agreed that some design issues could be grouped and addressed together. Other issues were addressed together because they focused on particular aspects of the proposed development.
27 The Tribunal has addressed the issues under the following headings:
1) Whether Unit 4 should have access from, be orientated toward and be set back from the right of way.
2) Whether the front setbacks from Swansea Street East are acceptable.
3) Whether the proposed development is an appropriate replacement for the existing weatherboard dwelling.
4) Whether Unit 2 and Unit 3 have sufficient open space.
(Page 8)
- 5) Whether the various minor design issues are reasons to refuse the proposal or can be resolved as conditions.
6) Whether the proposal will be inconsistent with orderly and proper planning, have a detrimental impact on the general amenity of the locality and create an undesirable precedent.
Whether Unit 4 should have access from, be orientated toward and be set back from the right of way.
28 The plans for Unit 4, the rear unit, indicate a minimum 500 millimetre setback from the right of way. This distance corresponds to the 500 millimetre future widening of each side of the right of way referred to in cl 3.2.11 A6(i)(d) of the respondent's Streetscape Policy. Consequently, the plans provide for what would become a nil setback from the eventual boundary of the right of way.
29 Two sections of wall would be set back 500 millimetres from the right of way. One section would extend approximately 7.4 metres across the rear from the north-western side boundary. A second section would extend 6.6 metres from a 1.0 metre setback from the south-eastern side boundary. Between these two walls would be a blank wall approximately 4.8 metres long, which would be a wall to the kitchen, set back 1.0 metre to 1.5 metres from the right of way. The only openings in this side of Unit 4 would be a toilet window and laundry door in short walls at right angles to the right of way.
30 Mr Robert Cruickshank, a planner who appeared for the respondent, argued that the proposal failed to meet the objectives and requirements of the Streetscape Policy and the Codes because of the blank walls on the intended right of way boundary, the lack of windows and open fencing orientated toward the right of way and the lack of vehicle and pedestrian access between Unit 4 and the right of way.
31 Clause 3.2.11 A6.1 of the Streetscape Policy states:
"In addition to [cl 3.5.2 A4.1] of the [Codes], where an additional dwelling is proposed on a lot with frontage to the right-of-way, the dwelling shall face and gain sole vehicular access from the right-of-way where the lot has legal access to the right-of-way, with the exception of an existing green title battleaxe or strata battleaxe lot that has legal vehicular access to a primary or secondary street."
(Page 9)
32 Clause 3.5.2 A4.1 of the Codes states:
"Access to on-site parking to be provided, where available, solely from the right-of-way available for the use of the relevant lot and adequately paved and drained from the property boundary to a constructed street … "
33 The Streetscape Policy also contains the following provisions at cl 3.2.1 A1.3(i):
"i. Where the opportunity exists to create a streetscape by facing the dwelling onto and by providing access from the right-of-way, the following setback shall apply:
a) At least one habitable room of the ground floor of the dwelling shall be setback [sic] at 6.0 metres from the centreline of the right-of-way. A maximum setback of 7.0 metres applies to the remainder of the ground floor of the dwelling.
b) An entry portico or verandah open on at least two sides can be located within the front setback area with a minimum setback of 4.0 metres from the centreline of the right-of-way.
c) Where a courtyard is located within the front setback area between the dwelling and the right-of-way the entire ground floor of the dwelling may be setback [sic] a maximum of 7.0 metres. Locating a courtyard within the front setback area is acceptable only under [the] following circumstances:
(i) there is no opportunity to provide for a north facing outdoor living area behind the street setback area; and
(ii) there is no roof cover over the outdoor living area other than a verandah forming part of the dwelling."
(Page 10)
- setback from the centre line of the right of way is " … to replicate an open streetscape similar to that of a primary street, albeit to a street of lesser width".
35 Mr Cruickshank said 11 other lots adjoining the right of way have development potential. Four of these lots face Shepperton Road, a primary distributor road in the MRS to which access is not supported, and so will require right of way access. Mr Cruickshank provided evidence of a development approval issued, but not yet commenced, for two new dwellings facing the right of way on a lot diagonally across the right of way from the site.
36 The respondent also referred to the Accepted Crime Prevention through Environmental Design principle, incorporated into the Streetscape Policy, of encouraging passive surveillance of the right of way by requiring windows to face the right of way and open style fences.
37 Mr Cruickshank stated that:
"[i]n the past the Council has consistently required all developments with legal access to a right of way to have at least one dwelling orientate and take sole access via the right of way. Approval of the Development would therefore set an undesirable precedent for future similar developments along rights of way within the Town of Victoria Park."
38 The applicants' main argument on these issues centred on the poor standard of the right of way. The applicants referred to cl 3.5.4 A4.1 of the Codes, which requires the use of rights of way where available and adequately paved and drained. He also referred to the following from Planning Bulletin 33:
"The upgrading of rights of way to a sealed and drained standard should be required in areas of intensification of residential and commercial development."
39 Mr Lupsor correctly stated the right of way is not sealed and drained, and it was not contested that under the respondent's works programme, will not be until at least 2010. It was his submission that as the right of way was not paved and drained, it was not available, and the development should not have to face and use the right of way. He said the applicants were not objecting to the Streetscape Policy or to the principle of establishing a streetscape along rights of way. The applicants' objection
(Page 11)
- was the application of the Streetscape Policy to this particular site given the particular characteristics of the right of way.
40 Mr Sergio Famiano, a town planning consultant called by the applicants, stated:
"The intent of the Towns' [Streetscape Policy] and the [Codes], to create an active and consistent streetscape is supported in principle but must be conditioned on the basis that the right-of way is of a good standard to ensure that residents have a minimum standard of amenity and safety. That is not the case in this instance."
41 Mr Famiano further stated:
"It is my opinion that the orientation of the rear dwelling towards the right of way is unsuitable in this instance due to the poor condition of the right of way. The right of way itself is not sealed, is not drained and does not have any lighting whatsoever so in the evening the laneway is in complete darkness. This raises the question concerning the amenity that residents could expect to have if the dwelling is made to orientate towards the right of way and would also raise a concern with safety."
42 In addition to referring to the condition of the right of way, the applicants also referred to the poor condition of fences along the right of way and the poor maintenance in the exposed backyards. It was argued that these factors would also contribute to a reduced standard of amenity for the occupier if Unit 4 is required to have access to and orientate toward the right of way.
43 Mr Lupsor argued that as well as the poor standard of amenity in the right of way, there were two other special circumstances that applied to their application. The first was that the site is at the very end of the right of way. This, it was said, would ensure minimal impact on the streetscape and not create a precedent for other proposals because of the special location of the site.
44 The other special circumstance was a 5.0 metre high blank wall built on the right of way boundary on the lot immediately to the south-east of the site. Mr Famiano provided a photograph of the wall and Mr Lupsor said that the wall " … will not contribute to the creation of the streetscape and will make it difficult to widen the road to 6 [metres]." It was his submission that the wall would hide any development on the site and
(Page 12)
- therefore help ensure that the proposed development did not create a precedent. Mr Lupsor also noted that in addition to having an adverse impact on the right of way the 5.0 metre high wall would limit design flexibility and have an adverse impact on the amenity of Unit 4.
45 Mr Lupsor referred to several examples of developments adjoining rights of way in the Town of Victoria Park arguing that they were precedents for all or some of: no access; no orientation; or reduced setbacks.
46 Mr Lupsor also argued that cl 3.2.11 A6.1 of the Streetscape Policy provided exceptions for access from rights of way where an " … existing green title battleaxe or strata battleaxe lot … has legal vehicular access to a primary or secondary street". Mr Lupsor put the proposition that "[i]f we decided to subdivide the lot into two blocks, the rear unit does not have to use the right of way and a fence along the rear boundary would be acceptable".
47 On this point, the Tribunal favours Mr Cruickshank's submission that this clause does not apply to the site because the exemption only applies to existing battle axe lots.
48 In respect of the applicants' citing of references to use of rights of way in the various policies, it is the Tribunal's opinion that, while the parts of the policies cited are correct, they are out of context. The statements refer to objectives and, in the case of Planning Bulletin 33, were followed in the text by discussion of methods of obtaining the objectives, including developer contributions. The documents do not require local governments to pave and drain a right of way to street standard prior to requiring new developments to gain access from and orientate toward the right of way.
49 From the viewing of the site and right of way, the Tribunal agrees with the respondent that the right of way is trafficable. Of the precedents viewed, the Tribunal favours the evidence of Mr Cruickshank that the precedents address the objectives of Streetscape Policy.
50 On the other hand, the Tribunal recognises the amenity rights of the future occupier of Unit 4 and agrees with the applicants that the existing visual amenity of the fences and properties adjoining the right of way are generally of low quality. It also recognises the problems of transition and that the first development facing a right of way, especially if it is not near a secondary or primary street will have amenity issues to confront. The evidence of the precedents viewed by the Tribunal was that the respondent
(Page 13)
- also recognises this problem and has shown practical flexibility in the application of its Streetscape Policy. The evidence before the Tribunal was that design solutions exist where it is possible to address the objectives and requirements of the Streetscape Policy as well as the amenity requirements of the occupants of dwellings adjoining rights of way.
51 The Tribunal is not convinced by the applicants' argument that because the proposal is at the end of the right of way it will not create a precedent. The right of way is relatively short and improvement of the right of way for its full length is required. The high wall built on the right of way is not consistent with the planning objectives, but the Tribunal considers that redevelopment of that site might ultimately occur and its presence is not seen as a reason to abandon the planning goals of the Streetscape Policy. The Tribunal finds that there are no special circumstances that warrant a variation of the policies. If a variation were granted in this instance, it would be very difficult for Council to distinguish this development and require other applicants to address the right of way and contribute to the creation of a streetscape along the right of way consistent with the objectives of the Streetscape Policy.
52 If the proposed development were to proceed, almost two thirds of Unit 4 would be on the new rear boundary (after the 500 millimetre widening); the section of wall that is setback from the boundary would contain no windows and there would be no vehicular access to the right of way. This would not be consistent with orderly and proper planning as identified in the objectives and requirements of the relevant policies and therefore TPS 1.
53 The Tribunal accepts the evidence of the respondent that the Streetscape Policy has been consistently applied and has concluded that Unit 4 should appropriately have access from, be orientated toward and be set back from the right of way.
Whether the front setbacks from Swansea Street East are acceptable.
54 Three aspects of the front setback of Unit 1 raised concern. These were a parapet wall on the north-western side boundary 4.6 metres long and 2.74 metres high, set back 4.0 metres from the front boundary; across the front of Unit 1 an average setback of 5.29 metres with a minimum setback of 3.0 metres to part of the verandah and bedroom 1; and the setback to the garage of Unit 1 varying from 4.4 metres to 4.9 metres.
(Page 14)
55 In respect of the side boundary wall, the respondent referred to cl 3.3.2 A2 of the Codes which sets out acceptable development standards " … except where otherwise provided for in a Local Planning Policy". It is the respondent's case that its Streetscape Policy applies and it establishes requirements that vary from the Codes. The significance is that cl 3.2.1 A1.1 "Primary Streets" of the Streetscape Policy requires buildings to be set back " … 6.0 metre average with a 3.0 metre minimum from the street boundary…" whereas the Codes only require an average setback of 4.0 metres.
56 Mr Cruickshank stated that the respondent has consistently applied the average setback as the front setback line. The wall of Unit 1 on the side boundary must therefore either be set back 6.0 metres from the front boundary or 1.0 metre from the side boundary to be consistent with " … Council's demonstrated practice not to permit boundary walls within the street setback area". He said the performance criteria of the Streetscape Policy would not be satisfied because the blank wall did not " … contribute positively to the street environment in terms of function quality and appearance". Mr Cruickshank said that the boundary wall within the front setback was also contrary to the objective in the Codes of providing attractive and open streetscapes.
57 It was also Mr Cruickshank's evidence that the boundary wall would be significantly forward of the building line of the adjoining property and, in conflict with the performance criteria of the Streetscape Policy, would adversely impact on the outlook from that property.
58 The applicants did not contest the principle of setbacks to side boundary walls, but submitted that discretion should be exercised. Mr Famiano argued that the boundary wall was only 4.6 metres in length, that it was not unusual for parapet walls of similar height and length to be located within the front setback, and the proposed front setback to the boundary wall complied with the Codes. The applicants referred to the 1.8 metre high blank front boundary wall, or fence, of No 169 Swansea Street East that returned down the side of a driveway as a precedent for a variation of the setback requirements of the Streetscape Policy.
59 The Tribunal is of the opinion that the nearby front boundary wall is not a precedent because it is a screen wall to a garden area, is lower than a house wall and does not have an adjoining roof. The Tribunal has not been persuaded that in this locality there is a pattern of walls on side boundaries located within front setback areas.
(Page 15)
60 On the setback across the front of Unit 1, the Streetscape Policy permits exemptions where an existing dwelling is retained and a carport is proposed in the front setback area. An exemption is also available when the proposed setback is generally consistent with the street setback pattern.
61 Clause 3.2.2 A1 of the Streetscape Policy states that:
"A porch, balcony, verandah, chimney or the equivalent may (subject to the Building Code of Australia) project not more than one metre into the building setback area, provided that the total of such projections does not exceed 20% of the frontage of the site at any level and setback a minimum of 3.0 metres from the street boundary."
62 Mr Cruickshank submitted that, because the proposed verandah exceeded 20% of the frontage it is excluded from the concession of cl 3.22.2 A1 and must be included in calculating the average front setback. The inclusion of the verandah results in an average front setback of 5.29 metres which is less than the required 6.0 metre average setback. He said that the surrounding dwellings generally have setbacks in excess of 6.0 metres and all dwellings, including the two storey development at No 167 Swansea Street East, comply with the minimum and average primary street setback requirements of the Streetscape Policy.
63 It was Mr Cruickshank's submission that the respondent has consistently applied the Streetscape Policy and has " … only supported a variation of the average setback where either the subject lot was significantly constrained by virtue of it being a corner lot required to achieve street setbacks on at least two sides or where surrounding properties had significantly reduced street setbacks".
64 The applicants argued that the proposal provides an attractive streetscape with the entrance and major habitable rooms addressing the street. The addition of the front verandah would improve the amenity of the future occupants and add interest to the streetscape. They argued that these positive elements of the design warrant a variation to the average front setback. Mr Famiano said the proposal addressed the street and would be an improvement over the front elevation of the front dwellings at No 167 and No 169 Swansea Street East, which were subject to the same conditions of the Streetscape Policy and the Codes.
65 Mr Famiano noted that, in the development at No 169 Swansea Street East, the front unit was only able to achieve the
(Page 16)
- average front setback by locating the private external living area in the front setback. His criticism of the front unit at No 167 Swansea Street East was that the front setback was only 4.2 metres, but the average was achieved by including the area in front of the entry porch located in the side elevation facing the communal drive way. Mr Famiano observed that " … whilst this dwelling technically complies with the 6.0 metre average setback, the result is somewhat substandard with the front elevation appearing as a flat wall with windows".
66 The Tribunal notes that the design, as it stands, is not far from achieving the required average and minimum setbacks. For example, the setback of the garage can easily be increased from 4.4 metres to 4.5 metres to achieve the minimum for a garage. If there were no other problems, this would form a condition of approval.
67 The average setback to the dwelling, including the side boundary wall, is slightly more complex. The Tribunal does not consider it appropriate to consider whether separate components of this particular design should be the subject of particular conditions because the components work together to impact on the front setback. For example, reducing incursions into the front setback to 20% of the frontage, or relocating the proposed side boundary wall from the front setback may impact on other aspects of the design which in turn might affect the front setback. In summary, there are too many variables for the Tribunal to consider the imposition of conditions specific to particular elements as a means of achieving an acceptable front setback.
68 While attempts have been made in the design to address the streetscape, the Tribunal is persuaded by the evidence of Mr Cruickshank that there are no constraining circumstances that warrant a variation to the respondent's consistent application of its Streetscape Policy. The Tribunal has concluded that the proposed variations to the required front setback from Swansea Street East are not acceptable.
Whether the proposed development is an appropriate replacement for the existing weatherboard dwelling.
69 The site contains a weatherboard house constructed in 1928. The house would need to be demolished to enable the construction of the proposal. The respondent's Streetscape Policy at cl 3.2.9 A2.1 lists circumstances when demolition will be considered, including, relevantly:
(Page 17)
- "vi. [W]here the dwelling is in a weatherboard streetscape or was constructed in or prior to 1945, and planning approval has been obtained for the subsequent development proposed on the site."
70 Clause 3.2.9 A2.2 of the Streetscape Policy states that:
"Where demolition is proposed in subclauses [v] and [vi] above, the subsequent development must comply with the relevant provisions of the Town Planning Scheme, contribute positively to the character of the streetscape in which the development is set and be an appropriate replacement for the traditional character dwellings being demolished."
71 It is relevant therefore to consider whether the proposed development is an appropriate replacement for the existing weatherboard dwelling.
72 Mr Cruickshank submitted that where demolition of a building built prior to 1945 is proposed "… the subsequent development is required to be of a very high standard and incorporate some of the design elements and features of the existing dwelling". He listed various features he said were desired without specifying the planning framework supporting the requirement. He then stated:
"[w]hile the development includes some of these features, the overall design of the Development is not of a high standard and, with the exception of open eaves and a substantial front verandah which would not normally be required in this area, achieves only the minimum design standard of residential development acceptable within the Town of Victoria Park."
73 Mr Famiano disputed Mr Cruickshank's assessment and listed several characteristics of the design which he said made the proposal a suitable replacement for the existing dwelling.
74 The Tribunal did not find it necessary to make a detailed analysis of each contested design element or to attempt to balance the positives and negatives because there are general principles that have more relevance to the issue.
75 Contrary to Mr Cruickshank's statement that " ... the subsequent development is required to be of a very high standard ... " the Streetscape Policy does not specify a very high standard, and nor was there any evidence that the design was required to incorporate design
(Page 18)
- elements and features of the existing dwelling. The wording of the Streetscape Policy is less ambitious, requiring that the subsequent development must "contribute positively to the character of the streetscape … and be an appropriate replacement for the traditional character dwelling being demolished".
76 Under cross-examination, Mr Cruickshank agreed that the design requirements were subjective.
77 However, the Tribunal considers that the subjectivity loses its significance in the context of this review when some of the other words in cl 3.2.9 A2.2 of the Streetscape Policy are considered; specifically " … where demolition is proposed in subclauses (v) and (vi) above, the subsequent development must comply with the relevant provisions of the Town Planning Scheme".
78 Compliance with TPS 1 includes compliance with the Codes and any relevant Local Planning Policy. The Tribunal has already determined that there are areas of non-compliance with the Codes and the Streetscape Policy that cannot be supported. Therefore, the non-complying proposal in its current form is not considered to be an appropriate replacement for the existing dwelling.
Whether Unit 2 and Unit 3 have sufficient open space.
79 The agreed open space figures for the proposal are 49.5% for Unit 1, 42.8% for Unit 2, 44.9% for Unit 3 and 47% for Unit 4.
80 Clause 3.4.1 A1 of the Codes requires open space to be provided in accordance with Table 1 and Elements 2 and 3 which is a minimum of 45% of the site area of each dwelling. Mr Cruickshank said that the Council had consistently required the minimum open space requirements to achieve the performance criteria of the Codes to ensure that future residents have sufficient open space and the buildings are set in landscaped surroundings.
81 It was the applicants' case that the shortfalls are minor; 2.2% for Unit 2 and 0.1% for Unit 3. Mr Famiano's evidence was that the design aims to achieve maximum habitable internal floor space while providing at least the required minimum courtyard area. In his opinion, the variation would not affect the amenity of future residents and is acceptable.
82 The Tribunal accepts that the variations are minor. The Tribunal also accepts Mr Cruickshank's evidence that in similar situations the
(Page 19)
- respondent has consistently required a minimum of 45%. If there were no other problems, the Tribunal would consider a condition requiring a minimum 45%. However, apart from the major issues associated with the right of way and the front setback, there are various minor issues such as store areas, car parking sizes and setbacks to the communal street. Resolution of the minor issues will result in the potential loss of open space. There are too many variables to be certain that the imposition of a condition would result in Unit 2 and Unit 3 having sufficient open space.
Whether the various minor design issues are reasons to refuse the proposal or can be resolved as conditions.
83 During the hearing, the parties agreed that there were several matters of non-compliance with TPS 1 and policy standards. These were:
a) setback from the communal street;
b) the height of the solid portion of the front fence;
c) the size of the car parking bay to Unit 2;
d) the height of a retaining wall; and
e) the size of some of the stores.
84 The Tribunal agrees with the parties that if the development had been acceptable in all other respects, these five areas of non-compliance would have been dealt with as conditions of approval.
Whether the proposal will be inconsistent with orderly and proper planning, have a detrimental impact on the general amenity of the locality and create an undesirable precedent.
85 The Tribunal has found, as set out in the discussion above, that the proposed development does not adequately address the established planning objectives of the polices in place for the locality. The Tribunal considers the proposal is inconsistent with orderly and proper planning, and will have a detrimental impact on the amenity of the locality. This is especially because of the lack of access to the right of way; the lack of orientation to the right of way; the reduced setbacks to the right of way and front street, and the encroachment of a boundary wall into the front setback area.
86 The Tribunal is aware that amenity involves not only the locality, but also the occupants. When assessing any new proposal, the respondent
(Page 20)
- will need to be aware of the amenity of the occupants of any unit or units facing the right of way. The existing amenity of the right of way is poor. The evidence before the Tribunal, including from the view, was that in similar situations in Victoria Park, design solutions have been found that address the requirements of the Streetscape Policy while at the same time providing reasonable amenity for the occupants of units facing a right of way.
87 On whether an approval of the proposed development would create an undesirable precedent, the evidence presented to the Tribunal indicates a consistent application of the Codes and the Streetscape Policy by the respondent. There is not in the proposed development sufficient to distinguish it from other undistinguished developments. In the face of an approval of this proposal, it would be difficult to require subsequent undistinguished developments to comply with a requirement to face toward and have sole vehicular access from the right of way. This would be inconsistent with the established planning policy of creating an effective and complete streetscape along the right of way. Similarly, if the boundary wall and other intrusions were approved in the front setback it would be very difficult for Council to refuse similar applications because there are no compelling reasons or special circumstances associated with this site that warrant approval of a reduction in the set back standards.
Conclusion
88 As set out above, the Tribunal has found in its consideration of the issues identified in this matter, that:
1) Unit 4 should have access from, be orientated toward and be setback from the right of way;
2) The proposed front setbacks from Swansea Street East are not acceptable;
3) The proposed development is not an appropriate replacement for the existing weatherboard dwelling because it is not compliant with the relevant policies as required by TPS 1;
4) Unit 2 and Unit 3 do not have sufficient open space and to provide this when other design variations are required contributes to the need for a redesign;
(Page 21)
- 5) The various minor design issues could be resolved as conditions; and
6) The proposed development would be inconsistent with orderly and proper planning, have a detrimental impact on the general amenity of the locality and create an undesirable precedent.
Orders
89 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the Town of Victoria Park to refuse the application to build four grouped dwellings on Lot 506 (No 173) Swansea Street East is affirmed.
I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
0
0
4