Mashara and Joseph Pty Ltd and Western Australian Planning Commission
[2005] WASAT 254
•23 SEPTEMBER 2005
MASHARA & JOSEPH PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 254
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 254 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:318/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR J JORDAN (MEMBER) | 23/09/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MASHARA & JOSEPH PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Survey strata subdivision Refusal Vehicle access from rightofway Rightofway 3.62 metres wide WAPC Bulletin No 33 for use of rightsofway as vehicle access requires 5.0 metres width Previous survey strata approval with widening condition Two houses on the land Second house built close to rear lot boundary Potential for other lots to be subdivided with access to rightofway No clear guide on appropriate eventual configuration of this rightofway |
Legislation: | Residential Design Codes of Western Australia 2002 Town Planning & Development Act 1928 (WA) |
Case References: | Nil Nil |
Orders | 1. The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : MASHARA & JOSEPH PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 254 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 23 SEPTEMBER 2005 FILE NO/S : DR 318 of 2005 BETWEEN : MASHARA & JOSEPH PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Survey strata subdivision Refusal Vehicle access from rightofway Rightofway 3.62 metres wide WAPC Bulletin No 33 for use of rightsofway as vehicle access requires 5.0 metres width Previous survey strata approval with widening condition Two houses on the land Second house built close to rear lot boundary Potential for other lots to be subdivided with access to rightofway No clear guide on appropriate eventual configuration of this rightofway
(Page 2)
Legislation:
Residential Design Codes of Western Australia 2002
Town Planning & Development Act 1928 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr Simon Bain
Respondent : Mr Malcolm Logan
Solicitors:
Applicant : As Agent
Respondent : As Agent
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Decision
1 The application is for review of the refusal of the proposed survey strata subdivision of Lot 83 Cantle Street. The subdivision would create a 260 square metre lot fronting Cantle Street containing the original dwelling. A 240 square metre rear lot would have on it a recently completed second house. The rear lot would have an access leg 2.1 metres wide to Cantle Street and frontage to a rear rightofway. The sole vehicular access to the rear house is via the rightofway.
2 The Western Australian Planning Commission refused the survey strata because the right-of-way is 3.62 metres wide, and its policy, as set out in its Bulletin No 33, requires a minimum width of 5.0 metres in the circumstances of this proposal. The applicant argues that 3.62 metres is sufficient width to serve the subject land, and refers to other developments built on or near the rightofway boundary.
3 The Town of Vincent has policies on the use of rightsofway as sole vehicular access. These provide for reduction in width, but also defer to Bulletin No 33.
4 This proposal is one of the first in this street block. The Tribunal is persuaded that a width greater than 3.62 metres is required, at least in part, because of the configuration of the rightofway and the number of lots that have access to it. There is not in place any guide for a coordinated approach to upgrading the rightofway in this street block, and the Tribunal is not persuaded that this subdivision can be allowed without widening merely because it is one of the first lodged. The application has therefore been refused.
Application
5 This is an application by Mashara and Joseph Pty Ltd (applicant) for review of the refusal by the Western Australian Planning Commission (respondent) to grant approval for the proposed survey strata subdivision of Lot 83 (No 15) Cantle Street, Perth.
The subject land
6 Lot 83 (the subject land) is more fully described as Lot 83 of Swan Location A4 on plan 1197, certificate of title volume 2131 folio 113.
(Page 4)
7 The subject land has an area of 498 square metres. It has frontage of 12.2 metres to Cantle Street at the northeastern boundary, and the rear, southwestern boundary has frontage of 12.2 metres to a rightofway.
8 The subject land is in a street block bounded at the northeast by Cantle Street, the southeast by West Parade, at the southwest by Chapman Street and to the northwest by Lord Street. Deposited Plan 28285 shows each lot in this street block is served at the rear by a rightofway. The configuration of the rightofway can best be described as an H. The vertical parts of the H are aligned generally north-south, and are at the rear of the lots fronting Lord Street and West Parade. The horizontal bar of the H is generally east-west, and is at the rear of the lots fronting Cantle Street, including the subject land, and Chapman Street. The rightofway is 3.62 metres wide for its full length.
9 On the subject land are two existing grouped dwellings. At the Cantle Street frontage is the original dwelling, with no onsite parking. At the rear is a twostorey dwelling with a garage about 4.8 metres wide, with vehicular access only from the rightofway. The sketches provided show setback from the rightofway to the rear wall of the house as 1.975 metres and to the garage door about 2.0 metres. On the lot boundary adjacent to the house is a fence 1800 millimetres high, with limestone columns and wooden panel inserts.
Background
10 In August 1998, the respondent granted conditional approval for the subdivision of the subject land into two survey strata lots (ref 609 98). Condition 9 of the approval read:
"The RightofWay to the rear of the subject site to be widened by 0.5 metre. The 0.5 metre widening to be shown on a Plan or Diagram of Survey as a 'Right-of-Way' and vested in the Crown for that purpose. The land is to be transferred free of cost to the Crown and without any payment of compensation."
11 In August 1999, the Town of Vincent approved a development application for two grouped dwellings, which involved the upgrading of the existing dwelling on the front and the development of a twostorey grouped dwelling at the rear of the subject land.
12 In January 2000, the respondent approved a fresh application for approval to subdivide the subject land into two survey strata lots (ref 1369 99). This approval was issued subsequent to the publication of the
(Page 5)
- respondent's Planning Bulletin No 33 Rightsofway in Established Area Guidelines (July 1999). This bulletin stipulated a rightofway width of 6.0 metres, with 5.0 metres acceptable in particular circumstances. The respondent increased the widening required to obtain half of the width necessary to achieve a 5.0 metre width. Condition 9 of this approval read:
"The RightofWay to the rear of the subject site to be widened by 0.69 metres, such widening being shown on the Strata Plan as a 'Public RightofWay' and vested in the Crown under Section 20A of the Town Planning and Development Act with the land being transferred free of cost to the Crown and without payment of compensation."
14 In August 2004, the current survey strata application was lodged with the respondent. The refusal of this application was issued on 13 December 2004.
Subdivision proposal
15 The application is for a 260 square metre survey strata lot and a 240 square metre survey strata lot. The 260 square metre lot has a 10.1 metre frontage to Cantle Street, and would contain the existing original dwelling. The 240 square metre rear lot has an access leg with a frontage of 2.1 metres to Cantle Street and the full 12.2 metre frontage to the rear rightofway. The recently completed twostorey grouped dwelling would be located on this rear lot.
The refusal
16 The respondent refused the application for the following reasons:
"1. The Commission is not prepared to approve a survey strata application as it proposes a 240 m2 survey strata lot with sole vehicular access from an underwidth rightofway which in the absence of a comprehensive development plan for the widening and upgrading of the right-of-way is considered to be contrary to the recommended minimum width requirements for
(Page 6)
- vehicular access purposes in the Western Australian Planning Commission Bulletin No 33.
- 2. The proposed survey strata scheme does not comply with the Commission's policy DC1.3, a provision of Statement of Planning Policy No 1, by reason of the proposed strata lots being provided with inadequate vehicular, bicycle access, including access for emergency vehicles.
3. Approval to the survey strata subdivision would set an undesirable precedent for the further subdivision of surrounding lots in a similar manner."
Planning framework
17 The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Residential R60' in Town of Vincent Town Planning Scheme No 1 (TPS1).
18 Under cl 19 of TPS1, the Residential Design Codes (Codes) are to be read as part of TPS1. There is no dispute that if the proposed subdivision were to proceed, the resultant lots would be consistent with the Codes' R60 lot requirements for single houses.
19 The Codes at cl 3.5.4 A4.5 under “Acceptable Development” include:
"Driveways for Multiple and Grouped Dwellings:
With a minimum width of 4m, which may be reduced to 3m where necessary to retain an existing dwelling; and
Are designed to allow vehicles to pass in opposite directions at one or more points, where the number of dwellings served by the driveway is six or more."
20 Reference is also made to policy DC2.6 Residential Road Planning clause 3.5.3, which includes, relevantly:
"A minimum carriageway width of 6.0 metres for rear laneways".
(Page 7)
21 In July 1999, the respondent published Planning Bulletin No 33 Rightsofway or Laneways in Established Areas Guidelines (Bulletin No 33). Clause 5.1 of Bulletin No 33 includes:
"Rightsofway were not designed to carry frequent vehicular traffic. The narrow width of some rights-of-way coupled with increased vehicular traffic could lead to property damage and accidents due to the insufficient space for the manoeuvring of vehicles around bends and into and out of properties. The narrow width of many rightsofway can leave insufficient space for passing either oncoming or parked vehicles and is potentially unsafe for pedestrians. Before comprehensive development occurs adjacent to rightsofway there may be a need for widening.
The Commission's policy DC2.6, Residential Road Planning, requires a minimum width of 6.0 metres for a rightofway for vehicular access. This is based upon the minimum space required to manoeuvre a car into or out of a garage, carport or parking space at right angles to the rightofway. It allows sufficient width for vehicles to pass safely, whilst also allowing room for pedestrians and cyclists.
It is recognised that vehicles can pass safely (at low speed) in a 5 metre rightofway. Therefore, existing 5.0 metre rightsofway may not require widening if they only provide (vehicular) access to garages, and are not the main (pedestrian) access to dwellings or commercial premises adjoining the rightsofway. For example, where a pedestrian access leg to the public street is provided (as in paragraph 4.1 above) pedestrians, emergency, personal and other services and rubbish collectors have alternative access to the rear development and to onstreet parking, and so the requirement to widen the rightofway may be waived where all development in the street block is likely to follow this pattern.
In commenting on proposals to dedicate rightsofway or considering resulting plans or diagrams of survey, the Commission will not normally support dedication where the width is less than 5 metres, and where the rightofway is the sole frontage for the proposed lots."
22 Bulletin No 33 states, at cl 5.1:
(Page 8)
- "Where particular constraints preclude the widening of a rightofway for residential developments, the following alternative design solutions may be acceptable:
- oneway traffic operation on a rightofway less than 5 metres wide;
- onsite parking bays constructed immediately adjacent and parallel to the rightofway (not within the rightofway);
narrow onelane sections of rightofway with wider sections for vehicles to pass at appropriate locations, and other similar approaches.
Any such proposal needs to be carefully considered in relation to the operation of the surrounding street network, and must be endorsed by the relevant local government before a subdivision or development application is approved."
23 Bulletin No 33 at cl 4 also sets out that:
"In order to provide for the upgrading of a rightofway to facilitate adjacent development, a more coordinated approach may be required. The preparation of a plan for a whole street block in which widening, parking, lighting and other services are provided may be desirable."
24 The Town of Vincent (Town) has a policy framework that documents the character of precincts and localities within precincts and gives guidance as to the type of development that will complement the established character. The subject land is within Banks Precinct (Policy No 3.1.15), the Norwood Locality (Policy No 3.3.28), and subject to Local Character Policy (Policy No 3.2.1).
25 The Town also has Policy No 3.1.21 Vehicular Access andPolicy No 3.1.62 Vehicular Access to Dwellings Via a Rightofway.
26 The Town's Policy No 3.2.4 Street Setbacks sets out:
"Acceptable Development
Development that complies with the following will generally be approved:
Rights of Way
(Page 9)
- A1.6 Each case will be dealt with on its merits in relation to the criteria. Compliance with the Policy relating to Vehicle Access to Dwellings via a RightofWay.
A1.6.1 Rear setbacks are to be restricted to a minimum of 6 metres.
A1.6.2 Compliance with the Western Australian Planning Commission’s Planning Bulletin No. 33 dated July 1999 relating to RightsofWay or Laneways in Established Areas Guidelines."
27 The Town's Policy No 3.1.62 Vehicular Access To Dwellings Via A RightOfWay states:
"OBJECTIVE
To provide the circumstances under which the Town of Vincent may allow vehicular access to be provided to a residential dwelling via a rightofway.
POLICY STATEMENT
The Town of Vincent may allow for sole vehicular access to be provided to a residential dwelling via a RightofWay provided that:
i) the subject property has a legal right-of-carriageway over the subject rightofway;
ii) the subject rightofway is drained and sealed to conform to the Town of Vincent’s specifications;
iii) a separate constructed pedestrian access of a minimum width of 1.5 metres is provided for such dwelling(s) to the street alignment. Alternatively, the dwelling(s) have legal access over an adjacent rightofway to the street alignment. The Town may also consider a pedestrian access leg of less than 1.5 metres where it abuts an existing house to be retained;
iv) consideration is given to the potential impact that the use of the rightofway may have on the residential development proposals involving sole vehicular access from the subject rightofway;
(Page 10)
- v) the rightofway has a minimum width of 3 metres;
vi) the carports, garages or car spaces are to be located in such a manner as to provide a minimum access manoeuvring dimension of 6 metres; and
vii) visual sight line dimensions are to be provided in accordance with the Policy relating to Visual Sight Lines Truncations Driveways and RightofWays (sic).
Compliance with the Western Australian Planning Commission's Planning Bulletin No 33 dated July 1999 relating to RightsofWay or Laneways in Established Areas Guidelines."
Discussion
28 Mr Simon Bain, an experienced planning consultant, provided submissions on behalf of the applicant. Mr Malcolm Logan, a planning officer of the Department for Planning and Infrastructure, provided a statement on behalf of the respondent.
29 The parties referred to the Town’s policy statements for the Banks Precinct and the Norwood Locality on the character and amenity of the locality within which the subject land is situated. The existing development, a new house behind a retained existing house, is consistent with the intent of the policies, both as to the form of acceptable infill housing, and because the resultant development has no adverse impact on the Cantle Street streetscape. It is other policies of the Town and the respondent, however, which more directly address the issue of the width of the rightofway.
30 In commenting on the existing development and the adequacy of the rightofway, Mr Logan identified the Town's Policy No 3.1.62, which refers to visual sight lines and requires compliance with the respondent's Bulletin No 33. Clause 5.1 of Bulletin No 33 recommends a 45degree visibility splay either side of the garage entrance, clear of development, to improve visibility and to make turning manoeuvres easier. Mr Logan said the 3.62 metre rightofway width and the existing fence on the boundary did not provide adequate manoeuvring area and sight lines. Mr Bain said the proposed subdivision reflects the situation with the existing houses and the rightofway at 3.62 metres is of sufficient width to allow for vehicular access. No evidence was provided by either party to
(Page 11)
- demonstrate the level of efficiency of the existing access arrangements for the subject land.
31 The Tribunal notes that widening the rightofway on both sides adjacent to the subject land might improve access to the garage, but this, it is considered, would be a benefit for existing development arising from a decision on whether the rightofway should be widened as a result of subdivision.
32 That is, in this instance, it is not the adequacy or otherwise of the access for the existing garage that is determinative of this matter, as this already exists. The Tribunal is concerned to determine whether, at this stage in the planning of the locality, survey strata subdivision is to be approved without requiring widening of the rightofway, as requested by the applicant.
33 In considering the proposed subdivision, the Tribunal noted, from the submissions lodged, that the existing development on the subject land would accommodate widening of the rightofway. The planning approval for the second house included the 1.8 metre high fence, variously described as a wall, built on the boundary with the rightofway. While the yard of the dwelling is about 100 millimetres lower than the level of the rightofway, this and the fence would not prevent a boundary adjustment.
34 The approved plan for the development shows a "1.975 setback" to the wall of the house from the boundary. If the respondent's setback requirement of 0.69 metres from the rightofway boundary were ceded, the house would then be 1.285 metres from the boundary. It appears, from the sketches, that an adjustment might have to be made to a canopy suspended above the door in this wall if it were to be completely within the subject land.
35 A starting point in considering the rightofway width is the respondent's Policy DC2.6, which requires a 6.0 metre width. The applicant and the respondent have both proceeded on the basis that a lesser width is acceptable in the circumstances of this particular subdivision.
36 One argument advanced by Mr Bain is that, applicable in this instance, is the "Acceptable Development" standard of 3.0 metres for a driveway to a rear dwelling in grouped dwelling developments as referred to in cl 3.5.4 A4.5 of the Codes. He submitted that there is no difference between such a driveway and the suitability of the rightofway as vehicle
(Page 12)
- access. The reduction of driveway width from 4.0 metres to 3.0 metres is discussed in the codes in the context of a retained existing dwelling constraining the width. Mr Bain submits that widening the length of the rightofway will be difficult to achieve because of buildings built on the rear or side boundaries of property on both sides of the rightofway.
37 Mr Logan refers to the Codes' definition of a driveway, which is "the paved vehicle accessway between the parking area of a dwelling and the property boundary", saying, in effect, that there is a marked difference between a driveway as defined and a rightofway beyond the property boundary that provides access for a number of unrelated properties.
38 From the photographs provided, there appear to be some examples of comparatively recent buildings on the rightofway boundary, and others where construction appears to have been set back and widening requirements could be accommodated. It does not follow, from the existence of buildings on the boundary, however, that the rightofway width should remain at 3.62 metres over its full length, and that no steps should be taken to achieve, at least in part, the 5.0 metre width the respondent considers to be the minimum.
39 Bulletin No 33 provides guidance on the use of existing rightsofway as sole means of vehicle access. Widening is contemplated where manoeuvring around corners is required, and where there is the potential for comprehensive redevelopment increasing traffic. The provision of underwidth rightsofway is discussed where alternative access is provided to the public street for pedestrians and other services, and oneway vehicle access is suitable. Mr Bain argues that the existing rightofway can work in this way, particularly given that the proposed rear lot will have an access leg to Cantle Street.
40 As Mr Logan pointed out, the proposed survey strata is one of the first in this street block, and many of the other properties have the capacity to be subdivided in a similar manner. Mr Bain and Mr Logan differ on the amount of potential future dwellings, each looking to different lengths of the rightofway to make an estimate. On this it can be said that, if the potential is to be realised with the rightofway width at less than 6.0 metres, a oneway traffic system contemplated by Bulletin No 33 appears appropriate. The number of vehicles using the rightofway will be the same whichever direction is selected for circulation.
(Page 13)
41 It was Mr Logan’s submission that 3.62 metres is too narrow to enable one vehicle to pass another in a safe and orderly manner, and is too narrow to meet design requirements of fire and ambulance authorities. Relevant in this regard is that the eastwest section of the rightofway is not visible by a person entering from Cantle Street or Chapman Street. It is not until the eastwest section is entered that the way ahead can be seen. At present, much of the rightofway east of the house immediately east of the subject land is dirt. The Tribunal is satisfied there should eventually be in place a rightofway of appropriate design to accommodate the development potential of the lots fronting the rightofway, and this will have to be, at least in part, of greater width than 3.62 metres.
42 The respondent required widening when approving the first application to subdivide the subject land in August 1998. The approval for subdivision issued in January 2000 required 0.69 metre widening, or a total width of 5.0 metres if widening is taken from both sides, based on the requirements of Bulletin No 33.
43 The January 2000 subdivision approval, subject to widening the rightofway, was in place when the applicant became the registered proprietor. This approval was still in place, just, when the Town issued the building licence for the current development in 2003.
44 The Town, in a letter to the respondent dated 11 October 2004, recommended conditional approval of the proposed survey strata, but made no mention of widening the rightofway. The Town's planning approval issued for the rear dwelling did not refer to the width of the rightofway.
45 The Tribunal does not interpret the Town's decisions as amounting to a policy position that no widening at all is required for the rightofway in this street block. Without more, it is not apparent how the Town will approach other proposals for similar forms of development and subdivision. The Town's Policy No 3.1.62 refers to a minimum width of 3.0 metres, but it also refers to the need for visual sight lines that are not present in this instance, and compliance with Bulletin No 33, which generally requires a minimum width of at least 5.0 metres.
46 Bulletin No 33, in requiring a minimum width of 5.0 metres in circumstances such as in this case, also sets out, at cl 4, that:
"In order to provide for the upgrading of a rightofway to facilitate adjacent development, a more coordinated approach may be required. The preparation of a plan for a whole street
(Page 14)
- block in which widening, parking, lighting and other services are provided may be desirable."
47 In the absence of advice from the Town on the approach to be taken to this particular rightofway in providing sole vehicular access, the Tribunal is reluctant to lightly set aside the Commission's established policy on widths of rightsofway. This Tribunal does not want to give a decision that widening is not required simply because the lot in question has one of the first infill developments built on it, particularly in circumstances where the development approval was granted with a current subdivision approval in place, which included a widening condition.
48 At this stage in the development of R60 infill housing and associated subdivision in this street block, caution appears to be an appropriate course so that the production by the Town of any guide to what it considers to be adequate vehicular access to houses and lots on the rightofway will not be compromised by ad hoc decisions on subdivision applications.
49 The applicant is seeking subdivision of the subject land without having to cede any land for the widening of the rightofway. From its examination of this matter, the Tribunal finds it is not able to support this form of subdivision at this stage in the planning of the locality.
Orders
50 The Tribunal makes the following order:
1. The application for review is dismissed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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