Marron and City Of Nedlands - [2009] WASAT 12

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MARRON and CITY OF NEDLANDS [2009] WASAT 12

MEMBER: MR J JORDAN (MEMBER)

HEARD: 28 OCTOBER 2008

DELIVERED : 23 JANUARY 2009

FILE NO/S: DR 193 of 2008

BETWEEN: ERROL MARRON
Applicant
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Town planning Development Application for retrospective development approval Conversion of hardstand parking area to garage Roofing of cabana area Onsite open space Street setback Application of scheme provisions Discretion to vary setback Impact on local character and amenity Application of policy - Effect of topography Orderly and proper planning

Legislation:

City of Nedlands Town Planning Scheme No 2, cl 5.1, cl 5.2.3, cl 5.3, cl 5.3.3, cl 5.3.3(a), cl 5.3.3(b), cl 5.5.1, cl 5.10.1, cl 6.2, cl 6.5.1, cl 8.1, cl 8.2.2
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2, cl 6.2.1 A1.1, cl 6.2.3 A3, cl 6.2.3 A3.4, cl 6.2.3 A3.5, cl 6.4.1, cl 6.4.1 A1, cl 6.4.1 P1, Table 1

Result:

The application for review is allowed in part.
The application for retrospective approval of the garage over the hardstand area is dismissed.
The application for retrospective approval of the roof over the cabana is allowed and the development approval is granted.

Category: B

Representation:

Counsel:

Applicant: Mr MJ Hardy
Respondent: Mr L Tsaknis

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods

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

Clive Elliott Jennings v Western Australian Planning Commission (2002) 122 LGERA 433
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Tangelo Design and Town of Vincent [2005] WASAT 67

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In 2003 and 2004, the City of Nedlands granted development approvals for a house to be built at No 5 Adams Road, corner of Marlin Court, adjoining the Swan River foreshore, in Dalkeith. Marlin Court runs parallel to the river. The lot had been terraced so that at an upper level, it was about 3.1 metres below the level of Marlin Court and then stepped down a further 3.1 metres to a lower level. The topography then falls further to the Swan River. The approved house was two storeys above the lower level and one storey at the upper level. At the upper level off Adams Road was the entrance to the house and crossover to a double garage. Between the garage and the retaining wall at the Marlin Court frontage, a hardstand area, also with access off Adams Road, was approved. At the rear of the garage and adjacent to doors into the house was an unroofed area identified as a cabana.
The owners of No 5 Adams Road, Dalkeith applied to the City of Nedlands for retrospective development approval for the addition of a garage built in place of the hardstand area in the front setback, and a roof to cover the cabana area. The City of Nedlands refused the application because it considered that the development no longer met the town planning scheme setback requirements from Marlin Court, or the on‑site open space requirements.
The Tribunal found that a purposive interpretation of the setback provisions best served the intended purpose of the town planning scheme and this allowed consideration of variation to the setback requirements. It was found that the setback of the cabana from Marlin Court was acceptable and, while the setback to the additional garage was unacceptable, the topography of the site resulted in little impact on Marlin Court.
Assessment of the impact on the open space requirements for the site resulted in a finding that the roofing of the cabana was acceptable, but the additional garage in place of the hardstand resulted in a distribution of open space on the site which did not complement the building and which had an adverse impact on the streetscape of Adams Road. The development of the garage was found to be inconsistent with the objectives for the town planning scheme and was therefore in conflict with orderly and proper planning.
The application for review was allowed in part. The application for the garage in place of the hardstand was dismissed and the application for the roof over the cabana was allowed.

Introduction

These proceedings involve an application brought by Mr Errol Marron (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of the decision of the City of Nedlands (respondent or Council) made at its meeting of 8 April 2008 to refuse an application for retrospective development approval for the enclosure of a 'hardstand' area to create an additional garage, and the roofing of a 'cabana' area at No 5 (Lot 27) Adams Road, corner of Marlin Court, Dalkeith (site).
In October 2003, the Council granted approval for the development of a single house on the site. Amended plans were approved in March 2004. At the eastern end of the site in the setback between a double garage attached to the house and Marlin Court boundary, there was shown on the approved plans a hardstand area for parking framed by columns and a lintel. Adjacent to the rear wall of the garage, and bordered in part on two other sides by the house, was an outdoor recreation area marked as a 'cabana'. Both these areas were approved with the plans marked 'no roof cover over'.
The respondent subsequently inspected the development and found that a roof had been constructed over the cabana area, and there had been added to the hardstand area a roof, a side wall and roller doors at each end to create a garage. The applicant applied to the respondent for retrospective development approval for the garage on the hardstand and the roof of the cabana area. The plans showing the development are those dated 3 October 2007 and 1 November 2007 which were attached to the Council Minutes dated 8 April 2008 and were at pages 80 ‑ 82 of the respondent's bundle of documents (exhibit 2). The Council considered the application at its meeting of 8 April 2008 and resolved to:
1.refuse the application for retrospective approval for enclosure of hardstand and cabana at [the site] … for the following reasons:
(a)the open space provided on the site does not meet the requirements of residential R12.5 or the performance criteria of the Codes; and
(b)the front setback of the building to the eastern boundary does not meet the 7.5m average requirement under clause 3.2.1 A1 of the Codes or its relevant performance criteria.
This application for review was then filed with the Tribunal. During the hearing, the Tribunal, accompanied by representatives of the parties, conducted a view of the site and surrounding streets.

Site and locality

The site has an area of 781.319 square metres. At the western end, it has a boundary of 20.1 metres to the reserve adjacent to the Swan River. The northern boundary is a 36.07 metre frontage to Adams Road. At the corner with Marlin Court is a truncation of 4.31 metres and then a frontage to Marlin Court at the eastern end of 17.04 metres. Adams Road terminates in a constructed cul‑de‑sac head at about the halfway point of the site, and then the road reserve descends as sand and weeds to the foreshore reserve. Marlin Court is also a cul‑de-sac terminating at the southern end about 40 metres from the site. The house on the site is one of three houses on the western side of Marlin Court. There are two houses at the cul‑de‑sac head and a further two houses on the eastern side of Marlin Court. On the northern side of Adams Road are four lots, each developed with a single house.
Significant in this matter is the topography. Adams Road slopes down toward the river westward from Victoria Avenue. The lots on the western side of Marlin Court are the subject of a restrictive covenant which requires that houses be no higher than 41 feet above low water mark at Fremantle, which equates to 11.780 AHD. To enable houses to be built so that they are no higher than this level, these lots have been subject to excavation.
A cross‑section of the site shows Marlin Court has an RL of 10.28. The site adjacent to the Marlin Court boundary is excavated to an RL of 7.171 with a terraced retaining wall on the boundary. The RL 7.171 level of the site, which will be identified as the upper floor level for convenience, extends back about 13 metres from the Marlin Court boundary and then the site drops abruptly to a lower floor level at RL 4. The top of a retaining wall at the western boundary is at RL 4, with the reserve adjacent to the river at about RL 1.1.
The Adams Road verge has been excavated from the point where the corner truncation meets the Adams Road boundary to provide for vehicle crossovers to the upper floor level. For safety, this has required that a fence be constructed across the verge above the excavation.
At the lower floor level, the house on the site has bedrooms and an entertaining area opening onto a verandah at the western end, with a yard and the river beyond. Stairs ascend to the upper floor level where the house extends from above the lower floor to near to the eastern boundary. The main entry of the house is about halfway along the Adams Road side of the house at this upper floor level. Adjacent to the eastern side of the front door at the RL 7.171 level is a double garage with a crossover from Adams Road. Abutting the double garage in the 5.8 metre wide setback from the eastern boundary is the single garage, built in place of the hardstand shown on the approved plans. The double garage and the single garage have matching brown tilting doors. To the rear of the double garage is an area about 4.25 metres wide and 6 metres deep marked 'cabana' on the plans, bounded by the garage on the northern side, doors into the house on the western side and, for half the length of the southern side, by a bedroom wall. The cabana area has been roofed. The approved plans showed the cabana and hardstand endorsed with 'no roof over'. Between the garage over the hardstand and the Marlin Court boundary are two terraces, each about 1 metre wide, which are part of the retaining wall at the eastern end of the site. Along the eastern boundary above the retaining wall at the Marlin Court level is a 1.3 metre high brick fence.
The two houses to the south of the site have driveways which go down from Marlin Court to garages in the front setback which have a roof at the same level as Marlin Court, and both of which have been constructed so that vehicles can park on the roof. The houses on the eastern side of Marlin Court have a floor level above the level of the roadway and are designed to look toward the river over the top of the houses opposite.

Planning framework

The site is zoned 'Residential' with the coding 'R12.5' under City of Nedlands Town Planning Scheme No 2 (TPS 2). In TPS 2, the Residential Planning Codes referred to are now the Residential Design Codes of Western Australia (2008) (Codes). Clause 5.2.3 of TPS 2 states that:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes.
Clause 5.3 of TPS 2 identifies variations and exclusions to the Codes. Clause 5.3.3 deals with a variation from the requirements of the Codes for setback from a street alignment and the circumstances when the 9 metre setback required by TPS 2 can be varied. Setbacks are dealt with below in the discussion on the issues.
Clause 5.5.1 of TPS 2 states that:
… Council may refuse to approve any development if in its opinion the development would adversely affect the amenity of the surrounding area having regard to the likely effect on the locality in terms of external appearance …
The Scheme does not define 'amenity'.
Clause 6.2 of TPS 2 gives discretion to approve development that has already been carried out. Clause 6.5.1 of TPS 2 states that, in determining an application, Council shall have regard to the orderly and proper planning of the area.
Clause 8.1 of TPS 2 gives Council the power to make local planning policies, and cl 8.2.2 states:
Council in respect of any application for planning approval … is to have regard to provisions of the [local planning] policy and the objectives which the policy is designed to achieve before making its decision.
The respondent has adopted Policy 6.18 'Reduction of Front Setbacks' (Setback Policy). The respondent says that this policy provides guidance when a setback variation is sought under cl 5.3.3 of TPS 2. The Setback Policy outlines that the 9 metre front setback is required ' … to preserve the 'spacious landscaped character of the City'. The purpose of the Setback Policy is to establish circumstances when discretion under cl 5.3.3 of TPS 2 may be exercised. Clause 3(b) of the Setback Policy states:
Where more than half of the lots on the same side of the street block have a setback less than 9m in accordance with this policy, the Council shall permit a reduced minimum front setback in accordance with the provisions of the Residential Codes ‑ Acceptable Development Criteria.
The acceptable development criteria for building setbacks are at cl 6.2.1 A1 of the Codes, and refer to Table 1 which provides that, for Residential R12.5 development, a primary street setback of 7.5 metres is required. Acceptable development standards for setbacks to carports and garages are at cl 6.2.3 A3 of the Codes.
Open space requirements for residential development are found in the Codes at cl 6.4.1. Open space is considered below under issue 2.

Issues

The issues that arise for consideration in this matter are:
1)whether the setback of the development from Marlin Court is adequate;
2)whether the development provides sufficient open space; and
3)whether the development would be consistent with orderly and proper planning.

Issue 1: Whether the setback of the development from Marlin Court is adequate

It was agreed between the parties that, while the house has a front door facing Adams Road, Marlin Court had been designated as the primary street when the house was approved by the City. Front setback is a design element addressed at cl 6.2 of the Codes. Clause 5.3 of TPS 2, however, sets out variations and exclusions to the Codes, and this includes, at cl 5.3.3, reference to setbacks from street alignment. Clause 5.3.3 provides that:
Notwithstanding the provisions of the Residential Planning Codes a person shall not commence or carry out the development of any land within a residential zone:
(a)by the erection of a building used for residential purposes at a distance of less than 9m from a street alignment unless otherwise provided in the Scheme. Council may vary this requirement for development within new large scale comprehensively designed subdivisions;
(b)on lots on one side of a section of a street which runs between two cross streets where more than half of the lots have dwellings thereon which are set back less than 9m, the Council may permit the erection or extension of a dwelling to be closer than 9m to the street boundary.
Mr Tsaknis, counsel for the respondent, submitted that cl 5.3.3(b) of TPS 2 cannot be applied, and this mandates that the development application must be refused. Mr Tsaknis said that cl 5.3.3(b) refers to a section of street which runs between two cross‑streets. Marlin Court is a cul‑de‑sac and therefore does not have a cross‑street at its southern end. It is possible, through advertence or oversight, that what was intended is not in TPS 2. However unfortunate that may be, the task of interpretation is to give effect to the words that are expressed in the law. Mr Tsaknis said that, however desirable it might be to insert the words 'or cul‑de‑sacs or equivalent' into cl 5.3.3(b), that point cannot be reached unless that is what the words intended. To insert those words would be to redraft the provision, and this simply cannot be done, however undesirable or unfortunate the consequences. In his submission, the meaning of a provision cannot be artificially changed to give it a meaning it cannot bear.
For the applicant, Mr Hardy's position was to look at the purpose of TPS 2 ‑ that is, what is intended to be achieved in relation to the provision. He submitted that the underlying rationale for the provision was to ensure that there is a degree of homogeneity about an identifiable area or an identifiable locality, and for that reason, a strict interpretation should not be applied to cl 5.3.3(b).
The Tribunal notes that cl 5.3.3(a) of TPS 2 refers to 'a street alignment' and cl 5.3.3(b) refers to 'the street boundary' ‑ that is, there is no differentiation between primary and secondary streets. A literal interpretation would require that a house on a corner lot be set back 9 metres from both the primary street and the secondary street. The Tribunal also notes that the house on the site approved by the respondent in 2004 has setbacks from Marlin Court of about 8 metres to the bedroom and about 5.8 metres to the side of the double garage respectively, and from Adams Road the house is set back only 1.5 metres. The Tribunal is of the view that it cannot have been the purpose of cl 5.3.3 to require a literal interpretation that would render particularly difficult the sensible use of many residential lots in the City.
The Tribunal disagrees with the submissions from the respondent that one can clearly perceive sections of street which are separated visually by a cross‑street, whereas the perception would be different with a street terminating in a cul‑de‑sac. The Tribunal is inclined to the view of Mr Ken Adam, the planner who gave evidence on behalf of the applicant, that one side of a cul‑de‑sac is clearly identifiable, and while there might be dispute on how the houses at the head of a cul‑de‑sac might be treated, houses distinctly on the western side of Marlin Court can be differentiated from houses on the eastern side of Marlin Court.
In Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 at [35] ‑ [41], Member McNab explored the case law on interpretation of provisions in planning schemes. He looked at those cases where it was said that interpretation of planning instruments should not extend to rewriting, in effect, a town planning scheme. He also considered the authorities which addressed the principle that planning instruments are to be applied in a practical and common sense and not an overly technical way. The latter included, in reference to words used and the provisions of a town planning scheme that:
[t]hey will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose: Chiefari v Brisbane City Council [2005] QPELR 500 (Wilson SC DCJ at 502).
Mr McNab also said:
… see further Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QBELR 648 at [25]: [P]lanning schemes are to be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach: [A]lthough planning schemes have the force of law, they are largely a work of town planners, and are not drawn with the precision of an Act of Parliament. It has been relatedly observed on more than one occasion that '[p]lanning instruments are often poorly drafted but [tribunals] must make some sense of them': Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 at 402.
Nevertheless, because Schemes have the force of law, orthodox legal principles of interpretation should prima facie apply in their construction …

Mr McNab went on to say:
Such 'orthodox legal principles' may not be as limiting as might otherwise be thought to be the case. Chief Justice Dixon, in an oft-quoted dictum, has suggested that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed': Commissioner for Railways (NSW) v Agalianos (1995) 92 CLR 390 at [397].
Ms Amanda Butterworth, a town planner called by the respondent, referred to the Setback Policy introduction, which states that the 9 metre setback of cl 5.3.3(a) is to preserve the spacious landscaped character of the City. She said the proposed reduction in setbacks did not achieve this.
The Tribunal has formed the view that the purpose of cl 5.3.3(b) of TPS 2 is included to provide an exception to the 9 metre setback in those streets where the 'character' of a side of a street is already determined by the presence of houses set back at a distance less than this. There is nothing identifiable in TPS 2 that leads to a conclusion that cul‑de‑sacs or streets, where street blocks are defined by junctions rather than cross‑streets, are to be treated any differently when identifying the local character. The purpose of the words 'between cross‑streets' is to provide guidance where the exception might be considered. Where that specific guidance does not apply, and absent any specific reference in TPS 2 why culs‑de‑sac should be treated differently, the Tribunal considers that the exception to the standard setback is still available.
This then leads to consideration of the setbacks to houses on the western side of Marlin Court. Next door to the site is No 3 Marlin Court. The house on this lot is set back approximately 9.2 metres from the front boundary, but the garage, which is attached to the house, has a front setback of approximately 1 metre. Number 3 Marlin Court is excavated in a manner similar to the site, and so vehicles enter via a crossover to a driveway which curves down and around into the garage. The roof of No 3 Marlin Court is constructed to provide two car parking bays at the level of Marlin Court.
The house at No 5 Marlin Court is not parallel to the street frontage and so, in part, is set back about 8 metres and, in part, extends to a setback of about 12 metres. The topography of No 5 Marlin Court is the same as that of the site, and at a nil setback from the street there has been constructed a two‑car garage with two parking spaces on the roof at Marlin Court level. A sketch attached to Ms Butterworth's witness statement, which appears to have been prepared some years ago for the purposes of the development of a swimming pool, shows the garage separated from the house by about 1 metre. An aerial photograph provided with her witness statement appeared to show a covered walkway between the garage and the house, and this was confirmed during the view. The house at No 7 Marlin Court, which is at the head of the cul‑de‑sac and which can be construed as being to the west of Marlin Court, has a setback beyond 9 metres. To note is that, in TPS 2, 'dwelling' is defined to mean:
a building or portion of a building containing at least one living room and includes rooms, outbuildings and other structures attached to or separate from such building ancillary thereto; such building or portions thereof being used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis …
The Tribunal has accepted the applicant's submission that more than 50% of the dwellings on the western side of Marlin Court are set back less than 9 metres. The experts agreed, and the Tribunal concurs, that if it is found that, as provided in cl 5.3.3(b), extension of a dwelling closer than 9 metres to street boundary may be permitted, then the Setback Policy provides further guidance. The Setback Policy states at cl 3(b):
Where more than half the lots on the same side of the street block have a setback less than 9m in accordance with this policy, the Council shall permit a reduced minimum front setback in accordance with the provisions of the Residential Design Codes ‑ acceptable development criteria.
The Setback Policy includes a note that says for the purpose of varying the minimum front setback, existing buildings on the same side of the street '… shall be measured between the front wall of the dwelling and the street alignment, excluding verandahs, detached garages and carports'. A verandah is defined in the Codes as 'a roofed open platform attached to a dwelling'. On the site, the garage the subject of the application is attached to the dwelling. The roofing of the 'cabana' creates an open area which, in part, is enclosed on three sides. For a depth of about 2.5 metres from the yard, the area is only enclosed on one side and the Tribunal considers that this part of the cabana might reasonably be considered as a verandah. There would therefore be no change in the existing setback if only the roofed cabana were to be considered.
The acceptable development provisions for carports and garages are at cl 6.2.3 of the Codes. Clause 6.2.3 A3.4 provides that carports within the street setback area can meet acceptable development provisions if they are not more than 50% of the frontage and there is an unobstructed view between the dwelling and the street. At cl 6.2.3 A3.5 of the Codes, it states that garages may be set back 4.5 metres from the primary street, and, in certain circumstances, this might be reduced to a setback of 3 metres where vehicles are parked parallel to the street alignment. Proposed is a garage with a side wall set back 2.058 metres, and it was Ms Butterworth's evidence that this acceptable development provision is therefore not met.
Mr Tsaknis said the Setback Policy referred specifically to the acceptable development standards. The experts agreed that the garage did not comply with the acceptable development standard. The question then becomes one of whether there is any reason why the policy ought not be applied in the particular case, and as argued by Mr Adam, the performance criteria in the Codes be applied. The principle is that, ordinarily, the relevant consideration in planning applications would be why the policy should not be applied, although this is not intended to replace the discretion of the decision‑maker: Clive Elliott Jennings v Western Australian Planning Commission (2002) 122 LGERA 433 at [24].
From Marlin Court, the only view by a person standing in the road is of sections of roof above the parapet around the dwelling. Any structure below cannot be seen. The circumstances are clearly not ordinary and so the Tribunal considers that strict application of the policy is not warranted in this instance. Relevant guidance is to be found in the objectives of the streetscape requirements at cl 6.2 of the Codes which states:
To contribute toward attractive streetscapes and security for occupants and passers‑by, to ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings.
Further, cl 5.5.1 of TPS 2 states that 'Council may refuse to approve any development if in its opinion the development would adversely affect the amenity of the surrounding area having regard to the likely effect on the locality in terms of the external appearance of the development… ' and the performance criteria for garages at cl 6.2.3P3 of the Codes refer to setting back of garages 'so as to not detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street or vice versa'.
The respondent said that, seeing roof where there would otherwise be openness has a detrimental impact on the streetscape, so the development should not be approved. The Tribunal notes that the roof of the cabana has the roof of the approved house on three sides. The roof of the additional garage, when viewed from Marlin Court, is against the backdrop of the existing roof of the house, but would be forward of that roof. The Tribunal has formed the view that the additional garage is located too close to the Marlin Court frontage. The additional section of garage roof, although marginal, does have some impact on the Marlin Court streetscape. If the impact of that roof on Marlin Court were the only consideration, the Tribunal is of the view that this would not be, of itself, sufficient to refuse the application.
The site is, however, a corner lot, and the location of the additional garage in the front setback adjacent to the Adams Road frontage does have other impacts which must be addressed. These impacts are considered in the discussion on the other issues below.

Issue 2: Whether the development provides sufficient open space

Under the Codes, the performance criteria for open space at cl 6.4.1 P1 that should be met are:
Sufficient open space around buildings
•to complement the building[;]
•to allow attractive streetscapes[; and]
•to suit the future needs of residents, having regard to the type and density of the dwelling.
The Codes state that one way to meet the performance criteria is to achieve the acceptable development criteria of cl 6.4.1A1, which state that 'open space be provided in accordance with Table 1', which, in turn, requires that, for an R12.5 coded site, there be a minimum of 55% open space. The two expert planning witnesses agreed that the built area of the site, which includes the additional development, is about 380 square metres, and therefore, the open space provided is in the order of 51% of the site, or a shortfall of 30 square metres from the area that would be required to satisfy the acceptable development standard. As the open space requirement was not met by achieving the acceptable development standard, the experts assessed the development against the performance criteria at cl 6.4.1 P1 of the Codes. The experts disagreed on whether the performance criteria were satisfied.
The first of the criteria at cl 6.4.1 P1 is that there be sufficient open space around buildings to complement the building. Under the definitions of the Codes, open space includes uncovered car bays and verandahs not enclosed on at least two sides. The area of the site that would no longer be defined as open space if the development were approved would be that occupied by the hardstand converted to the garage and the 60% of the roofed cabana that is bounded on more than two sides by walls. Ms Butterworth said that the City had a spacious landscaped character, as referred to in the Setback Policy. To complement the building, it was necessary to balance landscaping with the building. Reducing the open space area would not, in her opinion, preserve and maintain positively this spacious character and would not, therefore, complement the building.
Mr Adam pointed out that the house on the site was designed with the majority of open space concentrated on the western side of the house to complement the two‑storey scale and the vistas to the river. The lesser setback, and therefore open space, on the Marlin Court elevation he considered more appropriate to the reduced scale of the house viewed from that side and the provision of more intimate recreation space protected from the elements.
The Tribunal notes that the main open space orientation of the house is on the river side to the west, with verandahs and a yard with openings from dining and family areas. The two areas of development that would otherwise be open space are both at the eastern end of the house. The hardstand area would be occupied in many instances by a vehicle and is framed by the pillars and a lintel. It is considered, however, that the impact from the approved hardstand would be less than the reduction of the open space at the eastern end of the house resulting from the solid door dividing the additional garage from the remainder of the open space. This effect is not considered by the Tribunal to complement the building.
As about one‑third of the cabana area remains classified as 'open space' and there are no steps or physical barrier between that portion and the remainder of the cabana, again, the Tribunal believes that the relationship between the cabana and this smaller yard at the eastern end of the site is sufficient to make the space within the cabana usable as an integrated area, generally outdoor in character that complements the building.
Ms Butterworth highlighted the character of the locality as one of houses in open space settings. When viewed from Adams Road, the added garage leaves the impression of the house extending behind the retaining wall of the cutting behind the boundary truncation at the eastern end. The absence of any visible open space at the eastern end, even if across a hardstand, is considered by the Tribunal to not complement the building.
The second of the performance criteria at cl 6.4.1 P1 of the Codes is concerned with there being sufficient open space around the building to allow for an attractive streetscape. To note is that the cabana area is not visible from Adams Road because it would be behind the approved double garage, or from Marlin Court because of the topography.
Ms Butterworth said that adding the garage at the eastern end would result in a total of 10.22 metres of the Adams Road frontage being dedicated to the provision of garages. The additional garage door and roof did not, in her opinion, positively contributed to the streetscape. Mr Adam was of the opinion that the additional door and roof made little difference to the Adams Road streetscape, dominated by the house set back at 1.5 metres.
As noted under issue 1, the Tribunal has formed the view that the effect of the additional garage on the Marlin Court streetscape is marginal. In respect of the Adams Road streetscape, however, the Tribunal notes that the effect of adding the garage door would fill in the space between the eastern wall of the garage and the retaining wall on the front boundary. No open space would be visible at the eastern end of the site. As already mentioned, the 2003 development approval included over the hardstand the erection of the columns at the front and rear corners of the eastern side and a lintel between the garage and the columns and across the eastern side. This lintel is, in effect, a form of parapet and the topography is such that, on the view from Adams Road, this lintel extends behind the retaining wall at the cutting of the site along the line of the truncation on the boundary. In the opinion of the Tribunal, a third garage door and the roof results in a solid appearance without the relief of any apparent open space at the eastern end. Without the additional garage, the view generally from Adams Road would be under and over the lintel to the front yard beyond and the landscaping of the terraced retaining wall along the eastern boundary.
On the north side of Adams Road are houses which are set back about 9 metres. These houses also have visible side boundary setbacks. The house directly opposite the site has a 2 metre high solid front fence, but this does include a visually permeable 6 metre wide gate which provides views through to the house. On the site, the topography and the addition of the garage provides an aspect that gives the appearance of the house extending to the eastern boundary. In the opinion of the Tribunal, the absence of open space visible at the eastern end of the house on the site does not contribute to an attractive streetscape.
The third criteria for consideration is that there should be sufficient open space around the building to suit the future need of residents, having regard to the type and density of the dwelling. Ms Butterworth noted that the present arrangement of open space suited the current occupants, but this did not mean it would satisfy future needs. Mr Adam pointed out that the main garden and views were at the western end of the house. The yard at the eastern end and the cabana, which he considered to be functionally open space, provided an area sheltered from the wind and, in part, from the sun, and assisted in providing this form of open space for the residents.
The Tribunal noted from the comments attributed to the current residents of the house that existing open space can suit residents. It might be assumed that future residents might be similarly satisfied. On the information available, this criterion would appear to have been addressed.
The Tribunal, having considered the matter in the light of the performance criteria for open space at cl 6.4.1 P1 of the Codes, has formed the opinion that, overall, the development does not provide sufficient open space around the building, because the absence of open space at the eastern end adjacent to the Adams Road frontage does not complement the building or allow for an attractive streetscape.

Issue 3: Whether the development would be consistent with orderly and proper planning

In respect of the existing house, there was no evidence before the Tribunal on how the Council applied the setback provisions of cl 5.3.3(a) and cl 5.3.3(b) of TPS 2 and the acceptable development provisions of cl 6.3.1 of the Codes referred to in the Setback Policy, if that were the case. The existing house was approved by the Council with a setback of 1.5 metres from Adams Road, and the additional garage to be set back 3 metres from Adams Road, it appears, would also have satisfied the setback standard applied previously by the Council. Compliance with a standard in a planning instrument is not, however, the end of the matter, as there may be other provisions in a town planning that must be addressed. On this principle, the Tribunal said in Tangelo Design and Town of Vincent [2005] WASAT 67 at [59]:
Nevertheless, cl 38(5)(h) of TPS 1 requires the Tribunal to have regard to 'the conservation of the amenities of the locality'. In most planning assessments, the fact that a development conforms to a relevant provision of the R Codes is likely to be significant in relation to a related required matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration.
Clause 5.5.1 of TPS 2 states that:
Council may refuse to approve any development if in its opinion the development would adversely affect the amenity of the surrounding area having regard to the likely effect on the locality in terms of external appearance …
The Tribunal is therefore of the view that to allow development that might comply with a standard but would otherwise have an adverse impact of the amenity would not be orderly and proper planning. This view is supported by the conclusion reached above that the development of the additional garage would not allow for an attractive streetscape for Adams Road.
It was found that the setback reduced to about 2 metres from Marlin Court would have little impact on that streetscape, but it has also been concluded that the reduced setback would have an undesirable impact on the Adams Road streetscape inconsistent with the general objective in the Setback Policy of preserving the 'spacious landscaped character' of the City.
It might be argued that removal of the garage would simply result in a hardstand used for parking being visible. It would, however, create a situation where the hardstand in the position of the garage would make a contribution to the streetscape character of space about houses, which is the objective of TPS 2 and the Setback Policy.
Clause 6.5.1 of TPS 2 states that, in determining an application, Council shall have regard to the orderly and proper planning of the area. For the reasons set out, the Tribunal has concluded that the development of the additional garage would not be consistent with orderly and proper planning.

Conclusion

The Tribunal has determined that, in respect of issue 1, a purposive interpretation of the setback provisions at cl 5.3.3 best serves the intended purpose of TPS 2, which can be characterised as having streetscapes with common characteristics. This approach made available the discretion at cl 5.3.3(b) and the guidance of the setback provisions of the Codes referred to under the Council's Setback Policy when considering the setback of the proposed development from Marlin Court. The Tribunal found the setback to the roofed cabana acceptable. While the 2 metre setback to the additional garage was found to be unacceptable, the topography of the site is such that, with only the roof being visible, the impact on Marlin Court was marginal.

Issue 2 was whether the development provided sufficient open space. The proposed development was assessed against the open space performance criteria at cl 6.4.1 P1 of the Codes. The Tribunal concluded that the change to open space resulting from the roofing of the cabana was acceptable. The development of the additional garage, however, was considered to be unacceptable. This was because of the removal of open space from the eastern end of the site, which did not complement the building, and because the additional development resulted in the house being extended close to the eastern boundary, which did not contribute to an attractive streetscape in Adams Road.
The third issue was whether the development would be consistent with orderly and proper planning. It was found that the additional garage would be in conflict with the TPS 2 provisions relevant to impact on the amenity of the locality because of the adverse impact on the Adams Road streetscape. The removal of the open space setting at the eastern end of the house was also considered by the Tribunal to be in conflict with the objective in the Streetscape Policy of maintaining the character of spaciousness.
It was concluded that development of the additional garage would not be consistent with orderly and proper planning.
The Tribunal has decided to allow the roofing of the cabana as consistent with the intent of the provisions of the TPS 2. The conversion of the hardstand into an additional garage is refused as inconsistent with the setback, open space and orderly and proper planning requirements of TPS 2.
The respondent provided a schedule of three draft 'without prejudice' conditions. It was agreed between counsel that the only condition applicable was one relating to the provision of adequate stormwater drainage.

Orders

The Tribunal makes the following orders:
1.The application for review of Council's decision of 8 April 2008 to refuse retrospective development approval for a garage over the hardstand area and for a roof over the cabana at No 5 Adams Road, Dalkeith is allowed in part.
2.The application for retrospective development approval for the garage built on the hardstand area is dismissed and the Council's decision is affirmed.
3.The application for retrospective development approval for the roofing of the cabana is allowed and development approval is granted subject to the following conditions:
(1)The roofing of the cabana area is to be as shown on the plans date stamped by the City of Nedlands 3 October 2007 and 1 November 2007.
(2)All stormwater from building and paving areas (including driveways) shall be contained on‑site by draining to soakwells of adequate capacity to contain runoff from a 10‑year recurrent storm event, and the capacity of soakwells shall be a minimum of 1 cubic metre for every 80 square metres of paved or roofed surface on the property.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER