| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MACK and CITY OF SUBIACO [2013] WASAT 19 MEMBER : MS R MOORE (MEMBER) HEARD : 22 NOVEMBER 2012 DELIVERED : 7 FEBRUARY 2013 FILE NO/S : DR 243 of 2012 BETWEEN : CHRISTINE MACK Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords: Town planning Development application Refusal of double carport in front setback area Ancillary accommodation to rear of site Whether proposed carport should be allowed in context of streetscape Whether proposal would set undesirable precedent Legislation: City of Subiaco Town Planning Scheme No 4, cl 22, c 23, cl 27(4), cl 37, cl 39(3), cl 41(2), cl 70(6), cl 78, Pt 6
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)
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Result: The application for review is dismissed
The decision of the respondent is affirmed
Summary of Tribunal's decision: This matter involved an application for review of the City of Subiaco's decision to refuse planning approval for a double carport in the front setback area of No 14 Willcock Avenue, Daglish.
The applicant's family had previously applied to the City for essentially the same proposal which was refused by the City, and on review, the Tribunal, in 2006. Since that application, the applicant has had approved and constructed ancillary accommodation and associated car parking to the rear of the site. It is for this reason that the applicant argued there was now no feasible alternative location for a double carport other than the front setback area.
The main issue that arose for determination by the Tribunal was whether discretion should be exercised to approve the proposed double carport in a location considered to be the least acceptable, according to the City's local planning policies. The Tribunal found that the proposed carport would have a detrimental impact on the existing streetscape and did not warrant approval. The application for review was therefore dismissed and the decision of the City affirmed.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr J Algeri (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Algeri Planning & Appeals (Town Planners)
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Case(s) referred to in decision(s):
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Goldin v Minister for Transport (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Tafti and City of Subiaco [2012] WASAT 68
Waller and City of Subiaco [2006] WASAT 328
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These proceedings involve an application brought by Ms Christine Mack, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the City of Subiaco (Council, City or respondent) made on 12 June 2012 to refuse development approval for the construction of a double carport in the front setback area of No 14 (Lot 118) Willcock Avenue, Daglish.
Site and locality 2 The Tribunal had the benefit of a view of the site and the immediate locality in the company of the parties on the morning of the hearing. 3 The subject site is rectangular in shape with a street frontage and width of 15.24 metres and a length of 42.67 metres. It is 650 square metres in area and has rear access from a 6 metre wide right of way. 4 The site currently accommodates an original Interwar single storey brick and tile dwelling with a front setback of approximately 9.5 metres. There is a crossover from Willcock Avenue and associated driveway/hardstand area leading to a workshop/storage area located to the side of the dwelling. 5 To the rear of the site, ancillary accommodation has been approved and constructed, along with a single car parking bay accessed off the right of way. 6 Willcock Avenue is a tree lined street containing single dwellings with open front gardens and has a relatively consistent prevailing front setback of between 9 and 10 metres. The majority of the dwellings have a single width crossover and associated driveway/hardstand area accessed from Willcock Avenue. Some of these dwellings also have garages to the rear with access from the right of way. 7 The front setback area of many of the properties is obviously used for car parking, but the only garage/carport structure with access directly off Willcock Avenue is at No 8. This structure is an older single width structure located to the side of the dwelling and projecting slightly into the front setback area. (Page 5)
Proposed development 8 The proposed development is the construction of a double width brick and tile carport in the front setback area of the subject site. 9 The proposed carport is to be 6 metres wide and 5.4 metres in depth. It is to be located 1 metre from the front of the existing dwelling with a nil setback to the northern side boundary and a 3.4 metre setback to the front boundary. The carport is designed to match the existing dwelling in terms of form and materials.
Background 10 The applicant's family has previously applied to the respondent for approval of essentially the same proposed development. That development application was refused by the respondent and by the Tribunal on review in 2006: see Waller and City of Subiaco [2006] WASAT 328 (Waller). 11 In the Waller decision, the Tribunal examined the merits of the proposal against the relevant planning framework and determined that the application for review should be dismissed, as the proposed carport would be out of character with the prevailing streetscape if it was allowed to be constructed in the front setback area. 12 The relevant planning framework, at the time of the Waller decision, included the following: • Metropolitan Region Scheme (MRS); • City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme); • Residential Design Codes of Western Australia (2010) (Codes); • Local Planning Policy 3.1 Streetscape (LPP 3.1); • Local Planning Policy 3.7 Residential Car Parking (LPP 3.7); • Daglish Precinct Planning Policy; and • Crossover Rationalisation Policy. (Page 6)
13 There have been some changes to the planning framework since 2006, but those changes have not altered the intent in relation to car parking structures in front setback areas. 14 In Waller, the applicant argued that the proposed carport was required in order to provide weather protection for family vehicles, and that the most suitable location was in the front setback area because ancillary accommodation for family members was planned to be located to the rear of the site. Ms Christine Mack represented the applicant (a family member) in the Waller proceedings and made similar arguments to those made in these proceedings. 15 At the time of the Waller decision, the applicant had not applied for development approval for the ancillary accommodation currently occupying the rear of the site. The Tribunal found that there was no evidence that future ancillary accommodation would preclude the possibility of constructing a parking structure to the rear of the site. 16 The Tribunal also addressed the character of the streetscape and found at [81]: … Significantly, the character is strongly influenced by the consistent building setback, the spacious front gardens and the tree lined street verge. It is clear from this visual evidence that the proposed carport structure at a 3 metre setback rather than the 9 or 10 metre setback prevailing in the street, would be a dominating feature palpably contrasting with the character of the area. Extended paving associated with the proposal and the consequent reduction of green space would reinforce the impact of the development. 17 The issue of precedent was addressed by the Tribunal at [82]: The question of precedent must also be taken into account … and given the general homogeneity of the street block in terms of streetscape character and prevailing building setbacks, the Tribunal would accept that approval of the present application would set a precedent for further approvals that would have a consolidated detrimental impact on the presently valued visual character of the street. 18 Since the Waller decision, made in 2006, the respondent has approved, and the applicant has constructed, ancillary accommodation and a single car parking bay to the rear of the site. In the application now before the Tribunal, the applicant contends that there is now no feasible alternative for the location of a carport other than in the front setback area of the site. (Page 7)
Planning framework 19 The site is zoned Urban under the MRS and Residential with a density coding of R15 under TPS 4. 20 Clause 22 of TPS 4 states that Council approval is required for all development except for development exempt under cl 23. The proposed carport is not exempt under cl 23 and therefore requires development approval. 21 Clause 27(4) of TPS 4 provides that when considering an application for development approval, the Council is to have regard to a number of matters, including the following: (a) the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme; (b) any relevant planning policies; … (e) any submission accompanying or relating to the application; (f) the orderly and proper planning of the locality; (g) the conservation of the amenity of the locality; and (h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure. … 22 Clause 37 of TPS 4 divides the 'Scheme Area' into precincts with their own precinct planning policy. The subject site is located within the Daglish Precinct. The Daglish Precinct Planning Policy states that development in areas of Interwar housing close to the railway line (this includes the subject site) should be as follows: Any renovation or new development should reflect the scale, character, details and materials of Interwar buildings within the street block or immediate vicinity including front and side setbacks, verandahs and fencing[.] 23 Clause 39(3) of TPS 4 states: Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of those Codes. (Page 8)
24 Clause 41(2) of TPS 4 provides additional objectives that council shall have regard to when considering applications for development approval in residential zones, and includes the following: (a) the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community; … (f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock; (g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping; (h) to assist in the rejuvenation of degraded streetscape; … (j) to promote and encourage design that incorporates crime prevention through environmental design principles including but not limited to, appropriate fencing, appropriate landscaping, casual surveillance of public open spaces and adequate pedestrian movement sightlines. 25 Clause 70(6) of TPS 4 states that where a proposed development involves no change of use (as in this case), the car parking provisions in Pt 6 do not apply. 26 Clause 78 of TPS 4 provides for the preparation of planning policies under TPS 4. These planning policies are to be consistent with the Scheme, and where there are inconsistencies the Scheme shall prevail. 27 The following policies are considered relevant to the determination of this matter: (Page 9)
Council's decision 28 The Council refused development approval of this application for the following three reasons: 1. The proposal would not satisfy Section 5.2 Setbacks of Local Planning Policy 3.1 Streetscape Policy as the proposed setback of the carport from the front lot boundary would protrude into what is a consistent prevailing street setback within surrounding development. 2. The proposal would not satisfy Section 6.0 Access and Location of Local Planning Policy 3.7 Residential Car Parking as the proposed carport would be located in the least acceptable location for such structures and the structure would be detrimental to the streetscape character and amenity of the area within Willcock Avenue. 3. The proposal would not satisfy Clause 6.3 of Local Planning Policy 8.2 Daglish Precinct as the proposed carport would reduce the high quality streetscape evident within Willcock Avenue.
Issues 29 The respondent's statement of issues, facts and contentions raised the following three issues for determination by the Tribunal: 30 The applicant also raised an additional issue: 'whether discretion should have been exercised to approve the carport proposal'. Mr Joe Algeri, a town planner and the respondent's representative, was of the opinion that this is a summarising issue that can only be determined with the consideration of issues 1 3. The Tribunal agrees with Mr Algeri that this is not a separate issue, and as discussed with the parties during the hearing, the Tribunal, in considering the merits of the proposal in the (Page 10)
context of the existing planning framework, is exercising discretion by considering whether to approve or refuse the proposed development. 31 During the hearing, it was made clear that there is no argument between the parties regarding the design aesthetics of the proposal. Nor is there a dispute regarding the use of the front setback area for the current car parking arrangement. The respondent made it clear that its objection to the proposal is the impact of locating a built structure within the front setback area of the site. 32 The Tribunal considers the first two issues to be interrelated as they primarily deal with front setbacks and the impact on streetscape. Therefore the Tribunal will address issues 1 and 2 together, and deal with the issue of precedence separately.
Issues 1 and 2 33 Clause 5.0 of LPP 3.1 provides streetscape standards for all residential zones and states that 'development is to be consistent with the streetscape and neighbourhood character of its locality'. Streetscape and neighbourhood character are determined with reference to surrounding development and are defined as follows: Surrounding development: means the five properties on either side of the proposed development on both sides of the street (excluding laneways/rightofways) that the dwelling is orientated towards (refer to illustrations below). More significance will be given to surrounding development that is closer to the proposed development, particularly in the case of corner lots. Character: means the qualitative interplay of built form, vegetation and topographic characteristics in both the private and public domains that make one place different from another. Character is generally limited to height, front setbacks, side setbacks and bulk and does not relate to colours and finishes. 34 Clause 5.2 of LPP 3.1 requires the front setback of any development to be no less than the prevailing street setback. In this case, the planning experts agree that the proposal is not consistent with the setback requirements in LPP 3.1 as it proposes a street setback of 3.4 metres in lieu of the prevailing setback of 9 to 10 metres. 35 Mr Algeri, giving expert planning evidence for the respondent, was of the opinion that the proposal was not consistent with the setback requirements in LPP 3.1, and that there were no unique circumstances that would give rise for the policy to be departed from, particularly as there is (Page 11)
no need for the construction of a carport in order to satisfy any statutory parking requirements. 36 Mr Tyson Burkett, a town planner giving expert evidence on behalf of the applicant, was of the opinion that while the setback of the proposed carport was less than the prevailing street setback, it was consistent with the objectives of LPP 3.1. 37 The objectives of LPP 3.1 are: 1) to ensure that new development is consistent with the character and in particular the scale of existing residential development; 2) to ensure that new development is designed having regard to the issue of crime prevention and surveillance of the street and housing entrances; 3) to encourage creative and quality design solutions that meet the standards of this policy and enhance the character of existing residential areas; and 4) to protect the amenity for adjacent properties, with reference particularly to solar access, day-lighting and privacy. 38 Mr Burkett argued the following: • The proposed development is consistent with the character and scale of the existing residential development with the exception of setbacks. • The proposed carport is consistent with the architectural character and features of the main dwelling and does not detract from the streetscape. • The proposed carport is open on all sides and allows views of the street, and views of the dwelling from the street, and therefore does not inhibit surveillance and does not visually impact on the dwelling entrance. • 'Character' is a subjective view of measurable requirements including scale, bulk, setbacks, etc and the policy therefore encourages the maintenance of the existing 'character' rather than enhancement, and this objective relates more so to more substantial redevelopment. (Page 12)
• 'The current streetscape primarily consists of crossovers and access to the primary street frontage, in which residents park their cars in an informal fashion … The proposal seeks to enhance the streetscape, being the visual aspect of the streetscape[,] by enclosing this area with a carport.' • There are no adverse impacts on adjacent properties having regard to solar access, daylighting and privacy, given the opensided nature of the structure. • The definition of 'character' under the policy inflexibly limits the consideration of those factors which could be reasonably expected to be included within the consideration of character, specifically colours, materials and finish. The proposal seeks to complement the design of the dwelling in the use of materials, colours and finish and, as a result, is sympathetic to the streetscape. 39 The Tribunal is not persuaded by Mr Burkett's arguments that, notwithstanding its reduced setback, the proposal satisfies the objectives of LPP 3.1. On the face of it, it could be said that there are no particular issues relating to solar access, daylighting and privacy for adjacent properties. Nor is there any dispute between the parties regarding the materials and architectural form of the proposal. The open nature of the proposed structure would probably not be detrimental in regards to crime prevention and surveillance of the street. However, the dispute arises in regard to the impact of the reduced setback on the character of the existing residential development. The character of the area, as defined in the policy, includes the height, setbacks and bulk of the built form, but not colours and finishes. The Tribunal agrees with Mr Algeri that the introduction of a structure in the front setback area of this site, in this street, will have a detrimental impact on the existing streetscape character, notwithstanding its sympathetic design in terms of form and materials. Fundamentally, it is the location of the structure that causes the impact. 40 The Tribunal is also not persuaded that the existing streetscape will be enhanced by providing a carport to what is described as an informal car parking arrangement. The built form will be a permanent structure forward of the prevailing front setback and will have a detrimental impact on the existing character of the street. (Page 13)
41 LPP 3.1 goes on to deal specifically with garages and carports at cl 5.5, where it states the following: Car parking structures are seen to potentially damage traditional streetscapes due to their visual dominance, especially when situated in the front setback area. On this basis, any car parking structures (including but not limited to garages, carports, pergolas, patios and vergolas) should be located as per the City's Residential Car Parking Policy in addition to meeting the relevant setback requirements of this policy and the Residential Design Codes. 42 In her statement of issues, facts and contentions, Ms Mack contended that it is only the roof component of the structure that is unable to satisfy the requirements of LPP 3.1 and the proposal should be assessed against the relevant requirements of the Codes and LPP 3.7. 43 LPP 3.7, referred to above, is the City's Residential Car Parking Policy. The intent of LPP 3.7 is 'to minimise the detrimental impact of inappropriately located onsite car parking areas and structures on existing streetscapes, whilst protecting the safety of the public'. 44 Clause 4.0 of LPP 3.7 contains the following objectives: 4.1 to assist the development of attractive streetscapes; 4.2 to assist in the rejuvenation of degraded streetscapes; 4.3 to reduce the visibility of car parking areas and structures from the perspective of the primary street where preferable access is available; 4.4 to assist in the sympathetic design of car parking structures in relation to existing onsite buildings, and the residential areas in which they are located; 4.5 to give particular consideration to the location, siting and design of any car parking structure on a lot which has a building with an identified heritage value; 4.6 to ensure that the opportunity for use of street parking is maximised through the removal of redundant or inappropriate onsite car parking structures, areas and crossovers; 4.7 to reduce the removal of significant trees and gardens for the development of car parking areas and structures; 4.8 to discourage the use of roller doors (or similar garage/carport doors) and enclosed structures which visually dominate the streetscape; (Page 14)
4.9 to assist with the consolidation of onsite car parking arrangements; 4.10 to reduce the number of car parking areas and structures which conflict with an existing pattern of building setbacks; and 4.11 to reduce the number of car parking areas and structures which prevent or significantly reduce passive surveillance of the street from the dwelling, and which obscure the view of the dwelling as seen from the street. 45 Clause 6.0 of LPP 3.7 sets out, in order of acceptability, possible locations and access arrangements for car parking areas and structures as follows: 6.1 Rear Access: located to the rear of a property behind the dwelling, not accessed by or visible from the primary street. Lots that have vehicular access via a rightofway should use the rightofway for access to all required car-parking facilities. (Most Acceptable) 6.2 Secondary Street: located and accessed off a secondary street behind the dwelling, not visible from the primary frontage of the dwelling. 6.3 Front Access: accessed off the primary street and located at the rear of the property. 6.4 Side of dwelling: located behind the primary building line, alongside the dwelling and accessed off the primary street. 6.5 Front of dwelling: car parking areas and structures (excluding garages) located forward of the primary building line (in front of the dwelling). (Least Acceptable) 46 In this case, the carport is to be located in the least acceptable location, which is forward of the primary building line. Ms Mack contended that because of the ancillary accommodation and associated car parking bay located at the rear of the site, there is now no feasible alternative location for the proposed carport. 47 Clause 8.0 of LPP 3.7 provides circumstances under which the City may vary the acceptable standards, location and/or access to onsite car parking, and relevantly includes the following: (Page 15)
than 50%). In determining whether the existing pattern of parking in surrounding development is suitable, regard will be given to: i) whether surrounding development has the potential to be redeveloped such that car parking can be provided in a more acceptable location as defined by clause 6.0 of this policy; ii) whether the existing pattern of parking structures in the street setback area are of high architectural and streetscape quality; and iii) In cases of uncovered car parking areas, whether the location has the necessary approvals to be considered suitable by the city. … 8.5 where, in the opinion of the Council, the proposed parking arrangements would enhance the streetscape; … 8.7 where there is insufficient space at the rear of the property to provide both the required number of onsite car bays and the minimum outdoor living area requirements stipulated in the Acceptable Development Provisions of the Codes; … 8.9 where existing car parking has been occurring and no other alternative option exists. 48 In relation to these exceptions, Ms Mack contended that: • the nature of the existing development is such that the car parking requirement cannot be provided elsewhere; • in the surrounding development, a suitable pattern of existing car parking within the front setback area is already established; • the proposed parking arrangement will consolidate the existing arrangement and provide a dedicated hardstand bay for the second car to park. Widening the existing hardstand over the area of dead lawn will serve to enhance the front setback area of the lot; and (Page 16)
• the introduction of the roof component will have minimal impact on the streetscape, particularly as the street has existing large verge trees which will prevent the roof structure from being seen from a number of locations in the street. 49 Mr Burkett stated that LPP 3.7 acknowledges the need for reasonable access to onsite parking and that under the Codes, two car parking bays plus one for the ancillary accommodation are required and the only practicable location for those bays is the front setback area. 50 It was Mr Algeri's view that there is no requirement for any of the car parking bays to be covered, and that the existing arrangement with a crossover and driveway/hardstand in the front setback area was acceptable. 51 The Tribunal agrees with Mr Algeri that the provision of an onsite car parking bay does not automatically include a carport or garage structure. 52 It is relevant at this point to refer the parties to cl 70(6) of TPS 4, which states that where a proposed development does not involve a change of use, the car parking provisions in Pt 6 of the Scheme do not apply. 53 Also relevant at this point is a recent Tribunal decision in which the applicant argued that the Codes and the Scheme required a certain number of onsite car parking bays, and these could only be provided by allowing a carport in the front setback area: see Tafti and City of Subiaco [2012] WASAT 68 (Tafti). 54 At [41] of Tafti, the Tribunal stated: The acceptable development provision of the Codes in respect to access and car parking for a single house is the provision of two car spaces, which may be provided in tandem. The applicants asserted that they are seeking approval to provide the standard as set out in the acceptable development provisions; however, this can only be achieved by locating the car space in the least acceptable location as identified in LPP 3.7. 55 The Tribunal continued at [42] of Tafti as follows: The requirements for car parking as specified in the acceptable development provisions of the Codes is one matter for consideration in the determination of this application and could not, of itself, be a determinative matter. As identified in cl 27(4) of TPS 4, there are various (Page 17)
matters to which the Council, and the Tribunal on review, are required to have regard in determining an application. These matters include, but are not limited to, the provisions of the Scheme, which incorporates the Codes, any relevant planning policies, the design, scale and relationship to existing buildings and surrounding of any proposed building or structure, the orderly and proper planning of the locality and the conservation of the amenity of the area. The weighing of these factors may lead to a different finding than that specified in the applicable development provisions of the Codes and, therefore, it may be entirely appropriate, in particular circumstances of the particular case, that an application for a second car parking space onsite be refused. Given the findings in relation to Issues 1 4, the Tribunal is of the view that this is one of those cases. 56 There are some differences in this case. First, the acceptable development standards of the Codes require an extra car parking bay for the ancillary accommodation and second, there is an existing crossover and driveway/hardstand in the front setback area of the subject site. However, the applicant is making a similar argument by contending that two extra car parking bays must be provided, and because of the current site configuration, these bays must be located in the least acceptable location, which is the front setback area, and that these bays should be covered. 57 Mr Burkett argued that the Codes recognise the increasing affluence and reliance on vehicles which was not prevalent when this housing stock was built (during the Interwar period) and that these policies need to be flexibly applied. 58 Ms Mack also made this point by referring to the findings of Barker J in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 where his Honour held that while policy guides the exercise of discretion, it does not replace the discretion in the sense that it is to be applied inflexibly regardless of the merits of the particular case. She was also concerned that the respondent had been flexible in applying the policy to other carport applications in Daglish. 59 The Tribunal agrees that the policies are to be applied flexibly and can assure Ms Mack that this proposal has been considered on its merits. Unfortunately for the applicant, the Tribunal is of the view that the desire for weather protection for vehicles is only one factor to be considered when determining this matter. 60 In this case, the Tribunal is of the view that the proposed carport will have a detrimental impact on the existing streetscape by introducing a permanent structure, which includes a pitched and gabled roof and four (Page 18)
columns, into the front setback area where there currently are no structures (other than at No 8). The Tribunal does not regard the existence of street trees which may block the view of the carport from some locations in Willcock Avenue as sufficient reason to allow a structure in the front setback area. The Tribunal therefore finds that the proposal is not consistent with LPP 3.1 in regard to setbacks, character and impact on streetscape. Nor should the proposal be allowed in the front setback area (the least acceptable location), having regard to LPP 3.7.
Issue 3 61 In regard to adverse planning precedents, the Tribunal, in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) adopted the following criteria from Goldin v Minister for Transport (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in planning assessments. These are: 62 Mr Algeri contended that there were a number of properties within Willcock Avenue with existing crossovers and hardstand parking areas in the front setback which could potentially want to construct carports, and this would have a detrimental impact on the existing streetscape. 63 Mr Burkett was of the opinion that approval of the proposal would not set an undesirable precedent for the following reasons: • The proposed location is the only feasible location because of the circumstances on site. • The open nature of the proposed structure will not have a detrimental impact on the streetscape. • There were no objections from neighbours, and a petition submitted to the respondent demonstrated the acceptability of such forms of development by the majority of residents in Willcock Avenue. (Page 19)
64 Ms Mack argued further that approval of this proposal would not set an undesirable precedent as her family and site circumstances were unique and that the neighbours' proposals would be dismissed because they either have covered parking elsewhere on the site or have the ability to provide it elsewhere. 65 In order for precedent to be a relevant factor, both of the tests in Nicholls must be satisfied. In this case, the Tribunal has found, for the reasons discussed earlier, that the proposal is 'not of itself unobjectionable'. In regards to the second test, the Tribunal is of the view that there is more than a mere chance or possibility that there may be future undistinguishable applications, particularly as the lots in Willcock Avenue are of similar sizes, have direct access from a 6 metre rear right of way, and many lots have existing hardstands in the front setback area. The Tribunal is not swayed by Ms Mack's argument that her site circumstances are unique, as other landowners are able to apply for development to the rear of their sites which may in the future mean that the only feasible location for a carport is in their respective front setback areas. 66 Therefore, adverse planning precedent is a relevant consideration and, as such, in the circumstances of this case, the consideration of adverse planning precedent also warrants refusal of the application.
Conclusion 67 The Tribunal has determined that the proposed carport will have a detrimental impact on the existing streetscape of Willcock Avenue and is inconsistent with the respondent's local planning policies in regard to setback, character and streetscape. The Tribunal found no cogent reason to depart from these policies. 68 The issue of adverse planning precedent was addressed and the Tribunal found that it was a relevant consideration and, as such, in the circumstances of this case, also warranted refusal of the application. 69 It follows that the application for review should be dismissed and the decision of the respondent to refuse development approval should be affirmed.
Orders 70 For the reasons above, the Tribunal makes the following orders: 1. The application for review is dismissed. (Page 20)
2. The decision of the respondent made on 12 June 2012 to refuse development approval for a double carport at No 14 Willcock Avenue, Daglish is affirmed. |