McLean and Shire Of Dardanup
[2007] WASAT 32
•25 JANUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: McLEAN and SHIRE OF DARDANUP [2007] WASAT 32
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 25 JANUARY 2007
DELIVERED : 25 JANUARY 2007
FILE NO/S: DR 232 of 2006
BETWEEN: LUDITA DEANNE McLEAN
Applicant
AND
SHIRE OF DARDANUP
Respondent
Catchwords:
Town planning - Development application - Grouped dwelling in battleaxe configuration - Site located on district distributor road identified as future road of regional significance - Whether development standards should be modified from R12.5 to R20 Code requirements - Weight to be given to draft Scheme amendment which would remove site from provision enabling modification of standards - Traffic safety and convenience - Requirement that vehicles can turn around on site with three point turn - Conditional development approval granted
Legislation:
Planning and Development Act 2005 (WA), s 238(4), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.1.1, Table 1
Shire of Dardanup Town Planning Scheme No 3, cl 3.2.4, cl 3.4.1, cl 7.2.4
Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme No 1
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review allowed
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr P Kotsoglo (Acting as Agent)
Respondent: Mr R Quinn (Manager Planning Services)
Solicitors:
Applicant: Planning Solutions (Aust) Pty Ltd (Planners)
Respondent: Shire of Dardanup
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported, WATPAT 13 of 1988)
Nicholls and Western Australian Planning Commission [2005] WASAT 40
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms Ludita McLean sought review of the Shire's refusal of development approval for a grouped dwelling in a battleaxe configuration behind an existing dwelling in Eaton Drive, Eaton. Eaton Drive is a district distributor road and is identified as a future road of regional significance. The site is located in the middle of a group of 10 properties which all have direct vehicular access to Eaton Drive.
The principal issues concerned the weight to be given to a draft Scheme amendment which would remove the site from a provision which enabled modification of development standards from R12.5 to R20 Code requirements, whether the standards should be modified, and traffic safety and convenience.
Following the hearing, the Tribunal gave an oral decision in which it allowed the application for review and granted development approval subject to conditions.
The Tribunal determined that the draft Scheme amendment should be given limited weight, because of the uncertainty as to whether it would be made and, if so, when.
The Tribunal determined that it was appropriate to modify the development standards to R20 Code requirements, because of the particular characteristics of the site. In particular, the site had appropriate vehicular access arrangements, enabling safe and convenient forward access to a major road, without vehicles having to traverse the low density residential area. The retention of the existing house meant that the residents of the proposed dwelling would be separated from the traffic noise and pollution of the road. Furthermore, the site is located within 400 metres – a reasonable walking distance – of the Shire's commercial and administrative centre.
The Tribunal determined that, having regard to the range of considerations required to be taken into account, the application warranted conditional special development approval.
The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
These proceedings involve an application brought by Ms Ludita McLean pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Shire of Dardanup (Shire or Council) to refuse to approve a development application for "two grouped dwellings" at Lot 378 Eaton Drive, Eaton (site).
The site is rectangular in shape with a frontage and width of 24.12 metres, a depth of 42.75 metres and an area of 1031 square metres. The site currently contains a single storey dwelling house with two paved driveways, each allowing vehicular access to and from Eaton Drive. The site is located roughly in the middle of a group of 10 similarly-shaped and sized properties, which all have driveways providing direct vehicular access to and from Eaton Drive. The site and the properties in this group and in the wider locality around the site are zoned "Residential", have a residential density coding of R12.5 under the Shire of Dardanup Town Planning Scheme No 3 (TPS 3) and are zoned "Residential" under the Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme No 1 (TPS 1).
"Two grouped dwellings" is identified as a use class under TPS 3 and is a use that is permitted if special approval is given to it by the Council and if it complies with the conditions of the approval, if any, and with the relevant standards contained in TPS 3. Eaton Drive is currently a district distributor road under TPS 1 and subject to a maximum speed limit of 60 kilometres per hour. It comprises two two-lane carriageways, separated by a curved and non-trafficable median strip. This restricts vehicular access to and from the site and the other nine properties in the immediate group to left in, left out.
In addition to the immediate group of 10 properties, there appears to be another 10 properties along the length of Eaton Drive which have direct vehicular access to that road, although it also appears that the majority of properties which adjoin or are adjacent to Eaton Drive do not have direct vehicular access to that road, but rather have their vehicular access to roads which run parallel or perpendicular to Eaton Drive. These other properties present to Eaton Drive with a continuous block wall or fence.
In mid 2006, daily traffic volume in each carriageway of Eaton Drive in the vicinity of the site was approximately 3500 vehicles, although, in mid 2005, it was as high as 4868 and 4692 vehicles in a different part of Eaton Drive. TPS 1 proposes the connection of Millbridge and Eaton to the new subdivisions in the Australind area over the Collie River in the form of a new bridge via Eaton Drive. Mr Luka Botica, a civil engineer and Council's Manager of Technical Services, estimates that when Eaton and Millbridge are fully developed, daily traffic volume will increase to over 10 000 vehicles per carriageway, although he said that the figure could be considerably higher with the inclusion of the proposed Collie River bridge, which is likely to be built in a 20 to 25 year time frame. However, Mr Donald Veal, a traffic engineer who gave evidence on behalf of Ms McLean, considers that the traffic volume in the vicinity of the site is likely to remain less than 10 000 vehicles per carriageway.
The development application proposes the retention of the existing house on the site, the erection of a new single storey dwelling at the rear of the existing house in a battleaxe style configuration, the closure of the existing crossover on the western boundary, the construction of a new crossover and driveway adjacent to the eastern boundary to serve the proposed new dwelling, and the widening of the eastern existing crossover to serve the existing dwelling. Each dwelling would have a double garage and all vehicles entering the garages would be able to turn on site in a three-point manoeuvre so as to leave the site in a forward direction.
The development application was refused on 22 June 2006 on the recommendation of Council's assessing officer for the reason that "additional traffic accessing directly onto this section of Eaton Drive created from an additional dwelling will create an undesirable traffic hazard and set an adverse precedent for further development directly accessing onto Eaton Drive".
Having been invited by the Tribunal on two occasions to reconsider the decision under s 31 of the State Administration Tribunal Act 2004 (WA), the Shire has maintained its refusal of the application.
On 20 December 2006, the President formed the opinion under s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues, which has enabled the listing of the proceedings before me for final hearing today.
Issues for determination
The following five issues arise for determination in the review:
(1) Whether proposed Amendment 146, which identifies particular areas - not including the site - where Council may permit the development of grouped dwellings in the residential zone (Amendment 146), is a seriouslyentertained planning proposal and if so, what weight should be given to Amendment 146 in the circumstances of the case.
(2)Whether the proposed development is acceptable in relation to traffic safety and convenience.
(3)Whether approval of the proposed development would involve an adverse planning precedent.
(4)Whether, in this particular case, the Tribunal should modify the development standards to the R20 Code requirements under cl 3.4.1 of TPS 3.
(5)Whether the proposed development should be approved in the exercise of planning discretion, having regard to the considerations in cl 7.2.4 of TPS 3.
I will proceed to consider each of the issues in turn.
Is Amendment 146 relevant, and if so, what weight should be given to it?
Clause 3.1.1 and Table 1 of the Residential Design Codes of Western Australia (2002) (Codes) requires that a grouped dwelling on land coded R12.5 has a minimum site area of 700 square metres and an average site area of 800 square metres, and that the minimum lot area for a rear battleaxe grouped dwelling is 762.5 square metres.
As in this case the site area proposed for the front dwelling is 481 square metres, the site area proposed for the rear battleaxe dwelling is 550 square metres and the average site area is 515 square metres, in the absence of another provision in TPS 3 which varies the Codes' requirements, the development application would have to be refused under cl 3.2.4 of TPS 3.
However, cl 3.4.1 of TPS 3 provides as follows:
"For development of not more than two grouped dwellings in the 'Residential' zone, Council may, in a particular case but only where sewerage is available, modify the development standards to the R20 Code requirements. In assessing proposals Council will have regard to access, servicing, topography, drainage, amenity and any other matters Council considers appropriate."
Sewerage is available to the site. Consequently, the Council and the Tribunal on review has a discretion in this case to modify the development standards to the R20 requirements. The proposed development complies with the minimum and average lot area requirements, and in fact, all other requirements in Table 1 of the Codes, if the development standards are modified to R20 requirements.
However, it appears that at the same meeting at which the Council resolved to refuse the proposed development, it also resolved to consider a Scheme amendment "that clarifies the intent of cl 3.4.1 of TPS 3 and designates preferred areas where grouped dwellings may be permitted".
On 27 July 2006, the Council resolved to amend TPS 3 by means of Amendment 146 by, among other things, deleting the wording of cl 3.4.1 and replacing it with wording including the following:
"In the areas shown as R12.5/R20 on the Scheme Map, Council may permit the development of grouped dwellings providing it can be satisfactorily demonstrated in an Application for Planning Consent to Commence Development that such development complies with the Scheme provisions."
The site and the other nine properties in the same group which have direct frontage and vehicular access to Eaton Drive are not shown as R12.5/R20 on the plan presented to and approved by the Council on 27 July 2006. The reason given in Mr Robert Quinn's – Council's Manager of Planning Services - report to the council meeting of 27 July 2006 for excluding these properties is that "the additional traffic generated by grouped dwelling development will impede the proper functioning of [Eaton Road] and add to the traffic hazard and safety". However, a large number of properties in the vicinity of the site, including the properties across the back fence from the site, are shown as R12.5/R20.
On 29 August 2006, Council advertised Amendment 146 for public comment until 13 October 2006. The Council has not provided the Tribunal with a copy of the public submissions, although Mr Paul Kotsoglo, a consultant town planner who both represented and gave evidence on behalf of Ms McLean, said that objections were made to the Council, including an objection by Ms McLean.
Mr Quinn, who both represented and gave evidence on behalf of the Shire, says that on 9 November 2006, the Council adopted Amendment 146, and on 13 November 2006, forwarded it to the Western Australia Planning Commission (Commission) for consideration. The Tribunal has not been provided with a copy of the assessment report, if any, presented to Council in relation to the public submissions or its correspondence with the Commission. Mr Kotsoglo gave evidence that his client considers that her objection was not taken into account by Council.
Mr Quinn considers that following its adoption by Council on 9 November 2006, Amendment 146 is a seriously-entertained planning proposal and that the Tribunal should give it significant weight in this review.
Mr Kotsoglo, on the other hand, considers that although Amendment 146 is now a seriously-entertained planning proposal, it cannot, assessed today, be given sufficient weight to warrant refusal of the development application, given in particular that the attitude of the Minister for Planning and Infrastructure (Minister) is not known. Mr Kotsoglo gave evidence that in his experience, the Minister does give serious consideration to objections and other submissions made in relation to amendments to planning schemes. Mr Kotsoglo also indicated that Ms McLean intends to make further representations.
Having been adopted by the Council and advertised for public submission, Amendment 146 is clearly a seriously-entertained planning proposal and, therefore, a relevant matter for consideration in determining both whether to modify the development standards to the R20 requirements and, if the development standards are modified, in relation to whether to grant special approval to the proposed development.
However, the Tribunal does not consider that it should give significant substantial or considerable weight to Amendment 146.
In Nicholls and Western Australian Planning Commission [2005] WASAT 40, I identified at [59] four principal matters for consideration in determining what weight should appropriately be given to a draft amendment to a planning instrument. The four considerations are:
1)the degree to which the draft addresses the specific application;
2)the degree to which the draft is based on sound town planning principles;
3)the degree to which its ultimate approval could be regarded as certain; and
4)the degree to which its ultimate approval could be regarded as imminent.
Amendment 146 certainly addresses the specific application, because if it had been made, the application would be refused.
The Tribunal is not satisfied that, insofar as Amendment 146 excludes the site and the other nine properties in the immediate group from being capable of development for grouped dwellings, it is based on sound town planning principles. As noted earlier, the stated reason for excluding the site and the other properties on Eaton Drive is that "additional traffic from a grouped dwelling development will impede the proper functioning of [Eaton Drive] and add to the traffic hazard and safety". It seems that the report intended to say "lack of safety" rather than "safety". In any case, Mr Veal's evidence casts serious doubt as to the correctness of the stated reason for excluding the site. On his evidence, even if all 10 properties were developed for grouped dwellings, it would lead to an additional 100 vehicle movements per day on Eaton Drive - 50 inbound and 50 outbound.
This represents a 3% increase on current usage of the relevant carriageway and a 1% increase of anticipated ultimate usage. It is highly unlikely that the increase of 100 vehicle movements per day would impede the proper functioning of Eaton Drive, which on Mr Veal's evidence, has a capacity of up to 35 000 vehicles. Furthermore, for reasons which I'll come to, the Tribunal considers that the proposed development will have an acceptable impact in terms of traffic safety and convenience.
However, even accepting that the exclusion of the site and the other properties in the group from the proposed amendment to cl 3.4.1 is soundly based, the Tribunal cannot give significant, substantial or considerable weight to the amendment in the circumstances of this case, because there is no evidence at all as to the attitude of the Minister, or even of the Commission, to the draft amendment, nor any evidence as to a time frame for the amendment.
It appears that before Amendment 146 was sent to the Commission in mid November 2006 for consideration, the Commission was not aware of the draft. It is quite possible that the Commission and/or the Minister will accept Ms McLean's objection, particularly if it is supported by Mr Veal's analysis.
Although it appears that the Council wishes the Minister to make the amendment and has certainly maintained its position in relation to what it says is the unacceptability of the proposed development, given the degree of uncertainty as to whether the draft will be made by the Minister, and if so, when, the Tribunal can only give limited weight to Amendment 146. The Tribunal will take Amendment 146 into account when it comes to assess issues 4 and 5 below.
Is the proposed development acceptable in relation to traffic safety and convenience?
Mr Botica and Mr Veal agree that the level of traffic that the development is likely to generate is in the order of eight to 10 vehicles per day, that is, four to five in and four to five out of the development. They disagree, however, as to the level of risk that this additional traffic volume represents. Mr Botica assesses the risk as high, whereas Mr Veal assesses the risk as low or moderate.
Mr Botica notes that the dwellings which currently have direct access to Eaton Drive were part of an original subdivision that fronted what was then a local road rather than a district distributor road and one ultimately intended under Roads 2025 as a road of regional significance. Furthermore, recent subdivisions have not allowed lots to have direct vehicular frontage to Eaton Drive. Mr Botica gave the following evidence:
"It is undesirable to have direct vehicle access onto Eaton Drive. Risk assessment of the current situation of vehicles entering Eaton Drive via a crossover indicates a high risk of vehicle collision. Allowing further vehicles would increase the likelihood of an incident. Due to the traffic volumes currently experienced, it is recommended that all entry into the carriageway should be in forward gear. Reversing of vehicles would greatly increase the risk of collision. Although provisions for a vehicle to manoeuvre in forward gear can be made on site, it cannot be guaranteed that all vehicles will exit the site in forward gear."
However, Mr Veal gave the following evidence:
"From a road safety perspective, left in/left out movements onto a four-lane dual carriageway with a posted speed limit of 60 km/h and excellent sightlines due to the straight, level topography of the road … would be expected to score relatively low in terms of safety risk. Applying the risk management principles of AS/NZS 4360:1999 (Risk Management), the crash data would suggest that the consequences of a crash would be moderate or minor. In terms of likelihood the occurrence of a driveway crash is unlikely or indeed rare, given the local characteristics as described. These attributes would place the level of risk as moderate or low. It is difficult to understand how the risk has been assessed by the Shire as being 'high'."
Mr Veal considers that the risk posed by the proposed development would be low or moderate, even if the locality were fully developed as envisaged and the bridge across the Collie River constructed. Mr Veal considers that the proposed development involves an acceptable level of risk and is acceptable in terms of traffic safety and convenience.
The Tribunal prefers Mr Veal's evidence over Mr Botica's where they diverge, for the following six reasons.
First, the crash statistics in evidence support Mr Veal's conclusions. Over five years in the Shire's local government area, only six out of 303 road crashes involved left in/left out driveway movement, and none of the six involved any casualties. In Eaton Drive over the period 2000 to 2004, there were no crashes involving left in/left out driveways. While Mr Quinn observed that there has been an increase in population since 2004 in the locality, these crash statistics certainly support Mr Veal's contention.
Second, the development has been designed to enable all vehicles to enter and exit the site in a forward direction. Both traffic experts agree that this is desirable and appropriate. It is consistent with the Liveable Neighbourhoods policy. As Mr Veal said, commonsense will dictate that drivers should only enter Eaton Drive in forward gear. Mr Veal also suggests that Council is able to make this a condition of development approval.
Mr Veal was not able to say, however, whether a visitor's car to the rear proposed grouped dwelling could exit the site in forward gear with a three-point turn. He noted that it might involve a five-point turn. The Tribunal regards a five-point turn as undesirable. The inconvenience of a five-point turn would arguably increase the likelihood that a driver of a visiting vehicle might reverse out, despite a warning notice and the prospect of a 30 metre long driveway.
However, a condition can be imposed which requires the provision of a visitor space in a location which enables the visitor's vehicle to turn around using a three‑point turn. This may require a small change in the location of part of the garage of the rear unit.
Mr Botica also raised a concern about the prospect of a vehicle with a trailer or boat entering the site and having to reverse onto a major road. Mr Veal responded that, in his experience, a trailer or boat trailer can be detached and moved by hand, enabling the vehicle to enter and exit in a forward direction. The likelihood is that if the residents of the rear proposed grouped dwelling own a boat, it would be stored at the end of the driveway and would need to be detached in between use.
Third, five additional vehicles entering and five additional vehicles exiting the site will, as Mr Veal says, be insignificant and undetectable in terms of overall road traffic volume.
Fourth, there is an existing pattern of development in the immediate vicinity of the site, which involves driveways providing access to and from Eaton Drive. The site is located in the middle of this section. Motorists passing these properties will be aware of driveways servicing these properties before they pass the location of the new driveway proposed for the site.
The addition of another driveway on the site will not materially alter this existing pattern of development and will hardly be perceptible either in terms of the number of driveways accessing the road, which will in fact remain unchanged, or the level of traffic entering the road.
Fifth, even with traffic volumes of 20 000 vehicles per day once Eaton and other areas are fully developed, the road volume will, as I have noted previously, be well within the capacity of the road.
Finally, while the Tribunal accepts that Mr Botica is a qualified civil engineer with university training and practical experience in relation to traffic engineering matters, and is certainly qualified to give the evidence which he gave, unlike Mr Veal, he is not a specialist traffic engineer and is not a road safety auditor.
The experts and parties agree that there is clearly a matter of judgment in determining the level of risk. In the circumstances of this case, the Tribunal prefers the evidence of Mr Veal. The Tribunal therefore finds that the proposed development is acceptable in terms of traffic safety and convenience.
Would approval of the application involve an adverse planning precedent?
It has been said in many planning appeals and reviews that adverse precedent is not a "stand alone" argument: see, for example, Aspen Pty Ltd v State Planning Commission (Unreported, WATPAT 13 of 1988).
For reasons which I will discuss, it is appropriate in the particular circumstances of this case to modify the standards to R20 requirements. The development is otherwise satisfactory in relation to cl 7.2.4 considerations.
It should not, therefore, be refused on the basis of precedent. If other applications are made, they will need to be assessed on their merits, and if the site areas do not comply with the R12.5 standards, then in the context of cl 3.4.1.
Should the Tribunal modify development standards to R20?
Clause 3.4.1 requires the Tribunal to have regard to certain matters. In particular, it requires the Tribunal to have regard to access, servicing, topography, drainage, amenity and any other matters considered appropriate. The only substantive issue in this list of considerations raised by Council in this review relates to access and amenity, insofar as it is affected by access arrangements and amenity in terms of streetscape and the effect of Eaton Drive on future residents of the site.
As discussed earlier, the access arrangements are acceptable. The streetscape will not be changed in any material way, because the house at the front is proposed to be retained and because the house at the rear would be set behind the house at the front and would be single storey. Furthermore, the residents of the proposed dwelling at the rear would be protected in terms of noise and traffic by the existing house.
Mr Quinn also considers that it is inappropriate to allow modification, because it involves ad hoc planning or is equivalent to a site specific rezoning. However, under cl 3.4.1, the process is not a rezoning. The coding of the site remains R12.5, but because of that clause, with the possibility if appropriate in the particular circumstances of a case, of grouped dwelling development at a density of R20.
There is clearly an element of uncertainty created by the terms of cl 3.4.1, and indeed the proposed amendment in Amendment 146, because clauses of this nature create a possibility which cannot be fully assessed unless a specific application is made.
There is a powerful argument that while such clauses provide flexibility, they are not appropriate land use planning provisions. It is in the interests of landowners, the wider community and orderly and proper planning generally that land use planning should anticipate and guide development rather than respond to it. Nevertheless, the concern raised by Mr Quinn could be raised in relation to any application which is put forward under cl 3.4.1 for modification of the development standards to the R20 Code requirements.
The Council and the Tribunal on review must consider the discretion in relation to a site where sewerage is available, having regard to the matters for consideration in cl 3.4.1 and the particular circumstances of the case. If the making of Amendment 146 were relatively certain and imminent, that would be a powerful reason not to modify the requirements under cl 3.4.1, but for reasons that I have already discussed, the Tribunal can, assessing the matter today, give only limited weight to that draft amendment and therefore the draft amendment does not satisfy the Tribunal that the discretion in cl 3.4.1 should be exercised against Ms McLean.
The modification of the standards is consistent with particular objective (a) of TPS 3, which is to consolidate the urban areas of Eaton and to control the building on these areas of new structures, although as Mr Quinn correctly notes, this objective is, to some extent, a "motherhood statement" and probably would be satisfied in relation to any application under cl 3.4.1.
However, the Tribunal is satisfied that the particular characteristics of the site are such that it is suitable for two grouped dwellings at a density of R20. There are four principal reasons for this conclusion.
First, the proposed application is appropriate, having regard to the matters expressly spelt out for consideration in cl 3.4.1.
Second, the site is located between the core of a low density residential area, which is coded R12.5, and a major road, and has direct access to that road. In consequence, the residential density of the site can be doubled without imposing a burden on the low density residential area behind, because the additional residents and their visitors will not have to traverse the low density area in order to gain access to the district road network.
Third, the existing house is, as I have noted previously, proposed to be retained and, therefore, the proposed new grouped dwelling would be separated from the traffic noise and pollution of a major road by the existing house.
Finally, the site is located within 400 metres - a reasonable walking distance - of the commercial and administrative centre of the Shire's local government area. As Mr Kotsoglo suggested to Mr Quinn, a site in this location is appropriate for at least R20 grouped dwelling development. Consequently, in this particular case, it is appropriate to modify the development standards to R20.
Should the proposed development be approved in the exercise of planning discretion?
Clause 7.2.4 of TPS 3 requires the Council and the Tribunal on review in determining whether to grant special approval, to take into consideration a number of matters, including the provisions of the Scheme, the nature of the proposed development in relation to the development of any land in the vicinity, the existing and likely future amenity of the neighbourhood, including the question of whether the proposed development is likely to cause injury to such amenity, the nature of the roads giving access to the said land, whether the proposed development will cause a traffic hazard, and such other matters as the Council considers relevant.
The principal merit issue raised in this review is traffic safety and convenience. As discussed earlier, the development is acceptable in this respect. The development would introduce eight to 10 vehicle trips into a road with a carrying capacity of 35 000 vehicles and which currently carries seven to 9000 vehicles per day. The site is located in the middle of a group of 10 properties which already have direct vehicular access to the road. The development has been designed to provide entry and exit by two resident and one visitor vehicles per grouped dwelling in a forward direction. It can be conditioned so as to modify the plans of the rear unit to require the visitor space to be located so as to enable exit using a three‑point turn in a forward direction.
It is correct, as Mr Botica said, that there is no guarantee that people will behave in a logical, commonsense fashion. However, as Mr Veal observed, commonsense does indicate that reversing out is not likely to be a real concern where appropriate signage is required and a three-point turn is readily available. A driver, it should also be noted, only needs, in this case, to consider traffic in one direction when entering Eaton Drive from the site, and it is not disputed that there is a very good sight line available, because the road is straight and flat.
These circumstances combine to make the application appropriate when assessed under cl 7.2.4, in terms of the nature of the roads giving access to the land and whether the proposed development will cause a traffic hazard. In coming to this conclusion, the Tribunal is keenly conscious of the fact, emphasised in the Council's evidence and argument, that the existing driveway arrangements of the 10 properties predate the current characteristics of Eaton Drive and traffic volume, and that traffic volume is expected to significantly increase in the order of three times over the course of the next 20 or 25 years.
Nevertheless, the circumstances that I have referred to satisfy the Tribunal that the proposed development is, and is likely to remain, acceptable during its lifetime and bearing in mind the changes in road usage that are likely to occur over that lifetime.
The other principal matter for consideration in relation to whether special planning approval should be granted is draft Amendment 146. As I have said, it is a seriously-entertained planning proposal, certainly from the time that it was placed or returned from public exhibition. However, it cannot be given sufficient weight, when the application is assessed as at today's date, to warrant the refusal of a development application which is otherwise consistent with the applicable planning controls and acceptable on its merits.
Importantly, although the Tribunal is aware that objections were made, it is not aware of their number, content or significance. Importantly also, the Tribunal is not aware of the attitude of the Commission or the Minister, even on a preliminary basis.
Given in particular the lack of certainty and imminence in relation to the making of Amendment 146, it cannot be given sufficient weight to warrant the refusal of the application, and giving the amendment appropriate weight in the circumstances as they exist today and taking into account, in addition to Amendment 146, the other heads of consideration in cl 7.2.4, the Tribunal has come to the conclusion that the application does warrant conditional development approval.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse development approval for "two grouped dwellings" at No 78 (Lot 378) Eaton Drive, Eaton is set aside and a decision is substituted granting development approval, subject to the following conditions:
(1)The development shall be carried out in accordance with the Site Plan File 0612041358 drawn by Planning Solutions (Aust) Pty Ltd dated 4 December 2006, and the architectural plans, sheets 2 to 5, job no 260232 drawn by Ventura Homes dated 5 April 2006, except as required to be modified to comply with condition 10 below.
(2)This approval is valid provided that the development is substantially commenced within two years and completed within three years after the approval date. If development has not been substantially commenced within two years and completed within three years, the approval shall lapse and no further work shall be carried out without further approval.
(3)A landscaping plan shall be submitted to the planning department for approval prior to the landscaped areas being established and the development being occupied. Landscaping shall be established in front setback areas and adjacent to any area of common property in accordance with the approved landscaping plan.
(4)All verge areas abutting the property being suitably grassed or planted and maintained to the satisfaction of Council. The verge area shall not be used for car parking purposes, trade displays, storage and/or signage without prior written approval from Council.
(5)Landscaping and reticulation of the development site and adjoining road verges is to be installed prior to occupying the proposed development in accordance with the approved landscaping plan and thereafter maintained by the owner/occupier to the satisfaction of the Shire.
(6)An enclosed lockable storage area constructed in a design and material matching the dwelling, accessible from outside the dwelling, with a minimum dimension of 1.5 metres and an internal area of at least 4.0 square metres, is to be provided to the Shire's satisfaction for each dwelling.
(7)All stormwater run‑off being contained on site unless a suitable alternative is approved by Council.
(8)All crossovers are to be located and constructed to the Shire's satisfaction.
(9)The accessways, parking areas and turning areas shall be constructed, kerbed, formed, graded, drained and finished with a hard standing surface or equivalent by the developer to an approved design, and shall be maintained to a standard satisfactory to Council.
(10)A visitor parking space shall be provided for each grouped dwelling in a location which enables the visitor's vehicle to turn around on the site in a three‑point turn and exit the site in a forward direction. The plans submitted for building licence shall show the visitor spaces and templates demonstrating that two resident vehicles and one visitor vehicle can enter and exit the area of each grouped dwelling in a forward direction and turn around on site in a three-point turn so as to enable forward exit.
(11)Signage shall be installed prior to occupation, and thereafter maintained in each garage on site and adjacent to each visitor parking space for the lifetime of the development, stating that vehicles must enter and exit the site in a forward direction in accordance with this condition of development approval.
3.Each party is to pay its own costs of the proceedings.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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