MOORE and CITY OF COTTESLOE
[2016] WASAT 118
•28 SEPTEMBER 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MOORE and CITY OF COTTESLOE [2016] WASAT 118
MEMBER: MS L EDDY (MEMBER)
MR J JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 5 MAY, 20 AND 21 JUNE 2016
DELIVERED : 28 SEPTEMBER 2016
FILE NO/S: DR 308 of 2015
BETWEEN: ADRIAN MOORE
Applicant
AND
CITY OF COTTESLOE
Respondent
Catchwords:
Town planning Development application Vehicular access to property No existing access to road Existing rear laneway access Where proposal requires significant modification to existing embankment Pedestrian safety Impact of proposed subdivision of lot
Legislation:
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), reg 10, Sch 2, cl 61(c), cl 67
Planning and Development Act 2005 (WA), s 252 (1)
State Planning Policy 3.1 Residential Design Codes, cl 5.3.5
Town of Cottesloe Town Planning Scheme No 3, cl 1.6, cl 4.2.1, cl 5.2.2, cl 5.5, cl 10.2
Result:
Application dismissed
Decision of respondent to refuse proposed development affirmed
Summary of Tribunal's decision:
The applicant sought development approval for a two storey dwelling plus basement on land owned by the applicant in Deane Street, Cottesloe. The applicant's land is currently accessed via a lane to the rear rather than from Deane Street. As part of the proposed development, it was contemplated that the main access to the site would be provided from Deane Street. Because of the existing topography of the land within the verge in this part of Deane Street, the proposed vehicular access required a cutting through an existing embankment as well as alterations to the existing pedestrian footpath and alterations to a neighbour's driveway.
The main issues before the Tribunal were:
1)whether the proposed vehicular access to the site from Deane Street satisfies cl 5.3.5 of the Residential Design Codes and requirements of the Town of Cottesloe Local Planning Scheme No 3; and
2)whether the proposed vehicular access to the subject property from Deane Street would reduce the amenity, character and streetscape quality of the locality.
The Tribunal determined that, in the context of this case, an increase in risk to the safety of pedestrians, which both experts agreed the proposed development involved, meant that the proposed development did not adequately deal with pedestrian safety. The Tribunal found that the proposed development did not comply with cl 5.3.5 of the Residential Design Codes.
The Tribunal considered that the proposed cutting into the existing embankment in the verge adjacent to Deane Street would have a detrimental impact on the streetscape, character and amenity of the locality.
Having regard to these conclusions, as well as to the history of the site, the suitability of the land for the development, and to the submission made by the neighbour who would be directly impacted by the proposed development, the Tribunal determined that the application for development approval should be refused.
Category: B
Representation:
Counsel:
Applicant: Mr J Skinner
Respondent: Mr P McQueen
Solicitors:
Applicant: Borello Graham Lawyers
Respondent: Lavan Legal
Case(s) referred to in decision(s):
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Puma Energy Australia and City of Cockburn [2016] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 29 January 2015, Mr Adrian Moore (applicant) requested development approval from the Town of Cottesloe (respondent) for a two storey dwelling plus basement on land owned by the applicant at No 21 Deane Street, Cottesloe (site). As part of the proposed development, it was contemplated that the main access to the site would be provided from Deane Street. This required some form of cutting through the existing embankment within the verge adjacent to Deane Street in order to allow vehicles to enter through a tunnel‑like access way into the basement level of the proposed dwelling.
At its meeting on 24 August 2015, the respondent decided to defer determination of the proposed development. The reason for the deferral given in the Council meeting minutes was 'to enable the applicant in liaising with the town to submit revised plans showing the proposed natural ground level being lowered to reflect existing ground levels at the lot boundaries, deletion of the proposed crossover from Dean[e] Street and all vehicle access being from the rear right‑of‑way, and satisfactorily addressing the other matters raised in this report'.
On 1 September 2015, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's deemed refusal of his development application. The grounds for the application were that the decision of the respondent was not a deferral of the development application but was rather a refusal of that application. The applicant submitted that the decision to defer the development application incorporated requirements that the applicant amend fundamental design components of the proposed development.
Following mediation in the Tribunal, the respondent was invited to reconsider its decision. At its meeting on 14 December 2015, the respondent resolved to refuse the development application for the following reasons:
1. The proposed vehicle access from Deane Street does not satisfy the relevant aims of the Scheme, the Planning and Development (Local Planning Schemes) Regulations 2015 and/or the Residential Design Codes.
2.The proposed vehicle access would reduce the amenity, character and streetscape quality of the locality and be contrary to orderly and proper planning.
3.The proposed vehicle access would reduce traffic safety, as it would utilise the same point of access as the existing crossover serving 17 Deane Street, which is steeply‑graded and necessitates vehicles exiting onto the street in reverse gear.
4.The lot has safe and suitable vehicle access available from the sealed right‑of‑way at the rear as the preferable point and form of access.
5.The proposal would unnecessarily increase the number of vehicle crossovers to the lot.
6.The proposal would increase the impact of vehicle access points on the streetscape.
7.The plans received on 7 December 2015 have not addressed the relocation of services necessary within the Deane Street road reserve, which would affect the feasibility of the proposal and compliance with engineering and Australian Standards, and must be acceptable to the Town and the utility service authorities.
8.The proposal would set an undesirable precedent for this unusual form of vehicle access creating a tunnel in a raised verge with a pedestrian bridge over the access void, and constituting a permanent obstruction within the thoroughfare.
This matter was originally listed for a final hearing to occur in March 2016. Unfortunately, the town planner who had been engaged by the applicant and who was to give evidence at the hearing, died prior to the listed hearing date. As a consequence, the matter was relisted for a final hearing to commence in May 2016. Prior to that hearing, the applicant sought, and was granted, leave to amend his application by substituting the amended plans A01‑A07 dated 16 February 2016, revision 5 (Exhibit 5).
Following openings made by the parties at the commencement of the hearing in May 2016, the Tribunal went to the site to conduct a site view. In the course of the site view, it became apparent to the Tribunal that the plans relied upon by the applicant could not be easily understood when regard was had to the actual physical layout of the verge area and existing improvements within the verge.
Upon recommencement of the hearing at the Tribunal, the applicant was asked how the Tribunal was to determine whether or not to approve the proposed development, based on the seemingly inaccurate plan in relation to works within the verge area currently before it. Following an adjournment to allow the applicant and his representatives to consider his position, an application to adjourn the hearing in order to obtain amended drawings of the proposed crossover was made by the applicant. The respondent did not oppose that application. In the circumstances, the Tribunal determined that the hearing should be adjourned and the hearing was relisted to dates in June 2016.
At the commencement of the hearing in June 2016, the Tribunal made orders granting leave to the applicant to further amend his development application so as to substitute drawing no CW957800‑C1‑RD1 dated 19 May 2016, revision G, in relation to the part of the proposed development that is contained wholly outside of the site and within the verge area. That drawing is annexure ABJ 4 to the Supplementary Statement of Mr Andrew Brian Jackson (Exhibit 16).
Although the development application relates to the proposed construction of a single dwelling and associated works necessary to provide vehicular access to the site from Deane Street (proposed verge works), the only aspect of the proposed development in dispute between the parties was the proposed verge works.
Site and locality
The site has an area of approximately 925m² and is presently vacant land. It is located on Deane Street in Cottesloe. Deane Street is characterised by the following topographical features.
a)The portion of the bitumised section of Deane Street adjacent to the site runs below the natural ground level of the adjoining lots on both the southern and northern sides of the street.
b)The gradient of the road verge perpendicular to Deane Street rises sharply (to match the natural ground level of the adjacent lots) at a point in front of the lots situated at Nos 28 and 26 Avonmore Terrace, peaking on the northern side of the street at a point adjacent to the lots situated at Nos 24 and 26 Deane Street, and peaking on the southern side at a point adjacent to the site. The gradient then declines to level off at a point adjacent to the lot at 33 Deane Street on the southern side and the lot at 36 Deane Street on the northern side.
c)The steep road verge embankments are generally well vegetated with trees and bushes and there is a pedestrian footpath along the top of the road verge embankments on both sides of Deane Street. These embankments were historically man‑made. The southern embankment is only partially vegetated with trees and bushes, with the remainder comprising rock retaining walls.
d)These features give the appearance of Deane Street as a partially 'sunken' street (particularly the section adjacent to the site).
A paved right‑of‑way adjoins the southern boundary of the site (lane). The lane runs between Avonmore Terrace to the west and Broome Street to the east. The lane is in the care and maintenance of the respondent but does not have any name. Two‑way traffic is allowed along the lane. The lane is approximately 3 metres wide along its length, except for a portion of approximately 20 metres in length near the eastern end where a further 1.5 metre widening has been created subsequent to a condition of subdivision approval of land adjacent to the lane. At four other locations along the lane, existing structures have been constructed set back from the boundary with the lane, giving the lane the appearance of additional width at these locations. While these informal 'passing' areas would appear to assist in day‑to‑day traffic movement, it is the Tribunal's view that they cannot be considered to be an integral part of the laneway available at all times for third parties to use.
The site is within an established residential area where a number of the large original lots have been subdivided. The residences are predominantly two storeys. The majority of the dwellings in the area are single dwellings, although there are some grouped dwellings.
The site currently does not have any vehicular access to Deane Street. The residences at Nos 20, 22, 24, 26, 28, 30 and 34 Deane Street also do not have vehicular access to Deane Street. Those properties are all on the opposite side of Deane Street and have access to Fig Tree Lane to the rear. The residences at Nos 17, 25, 27, 20 7A, 29 and 32 Deane Street have vehicular access to Deane Street.
The lot situated on the western boundary of the site (No 17 Deane Street) has vehicular access to Deane Street by way of a steeply graded crossover which begins at a point in front of the site and runs almost parallel to Deane Street in the road verge in front of both the site and No 17 Deane Street. Number 17 Deane Street is a lot that has no alternative street frontage or any access to the lane.
Applicant's development proposal
Initially, the development application proposed two crossovers to provide for vehicular access to the site. One crossover from Deane Street to an undercroft garage on site, situated at basement level with space for the parking of five vehicles. The second crossover is from the laneway adjacent to the southern boundary of the site into a double carport adjoining a proposed building ancillary to the main two storey dwelling.
The amended development application proposes vehicular access only via a crossover from Deane Street to the proposed undercroft garage on site. There is no longer any proposed vehicular access to the site from the rear laneway.
The applicant submits that he seeks to gain access to the site from Deane Street for two reasons.
Firstly, the applicant proposes to subdivide the site into two lots. This subdivision application is currently before the Western Australian Planning Commission, with determination of that application awaiting the determination of this matter. The proposed subdivision seeks to bisect the site so as to create a front lot (on which the single house the subject of the current development application would be located) with access only from Deane Street, and a rear lot with access only from the rear laneway. Thus, the applicant submits that vehicular access to the site from Deane Street is necessary in order to avoid the proposed new front lot becoming landlocked.
Secondly, the applicant considers that it is more convenient to gain access to the site from Deane Street, rather than being required to traverse a circuitous route via the rear laneway in order to access the site. It is also the applicant's position that the rear laneway is inadequate in terms of width and quality of surface to provide suitable access to the site. The applicant submits that, where virtually all other properties facing Deane Street have vehicular access from the street, his request for that same convenient access is not unreasonable.
The proposed verge works will require substantial alterations to the Deane Street road verge.
It is proposed to make a cut through the existing embankment in the verge from Deane Street through to the site approximately 5 metres in width. New retaining walls would be constructed at the edges of that cut in order to retain the remaining embankment. The cut is proposed to be located in approximately the area where the existing crossover that leads to the steeply ascending driveway in the verge leading to No 17 Deane Street. The existing footpath will be diverted from the point near to the eastern boundary of Lot 19 Deane Street down to a position adjacent to Deane Street at the same level as Deane Street, passing in front of the crossover that is proposed to allow access to Nos 21 and 17 Deane Street, and then continues up the sloped driveway within the verge for No 17 Deane Street until the footpath meets the existing footpath on top of the embankment outside No 17 Deane Street. Thus, the existing pedestrian footpath that is at the top of the embankment adjacent to the boundaries of the site and its neighbouring lots, is proposed to be moved such that it traverses down the embankment, continues adjacent to the road for a distance of approximately 14 metres and then traverses back up the embankment within the area that is the allocated driveway to No 17 Deane Street before reconnecting with the existing footpath at the top of the embankment.
The proposed verge works would require relocation of existing services that are within the verge. It also involves the creation of a new turning head for the existing driveway to No 17 Deane Street in order to allow cars parked on that lot to reverse before commencing down the driveway in forward gear before exiting onto Deane Street.
Planning framework
Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (LPS Regulations) provides a list of matters to which, to the extent relevant, the decision‑maker must have due regard when determining a development application. This provision applies in place of cl 10.2 of the Town of Cottesloe Local Planning Scheme No 3 (LPS 3 or Scheme): Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] ‑ [47]. Relevant to this application, cl 67 of Sch 2 of the LPS Regulations requires the Tribunal to have due regard to:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning …;
(c)any approved State planning policy;
…
(n)the amenity of the locality including the following
…
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w)the history of the site where the development is to be located;
…
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
The phrase 'have due regard [to]' requires the decision‑maker to take into account, or give consideration to, the matters listed: Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [107]. Although the statutory provisions being considered by her Honour Pritchard J in the Marshall case are not identical to those in cl 67 of Sch 2 of the LPS Regulations, in my view, the context and purpose of those provisions are sufficiently similar that her Honour's determination of the content of the obligation to 'have due regard' in that case is equally applicable here. That is, the decision‑maker must give active or positive consideration to the matters listed, to the extent that they apply in any particular case: Marshall, at [115.]
The aims of the Scheme are provided at cl 1.6 of LPS 3, which relevantly provide:
The aims of the Scheme are to
(a)facilitate implementation of the State Planning Strategy and relevant regional plans and policies, including the Metropolitan Region Scheme, by coordinating the Scheme with such plans and policies;
(b)promote the Local Planning Strategy;
…
(e)provide opportunities for housing choice and variety in localities which have a strong sense of community identity and high levels of amenity;
(f)sustain the amenity, character and streetscape quality of the Scheme area;
…
(p)ensure that development and the use of land within the district complies with accepted standards and practices for public amenity and convenience[.]
The objectives of the Residential zone, within which the site is located, are stated at cl 4.2.1 of LPS 3, being to:
(a)encourage residential development only which is compatible with the scale and amenity of the locality;
(b)provide the opportunity for a variety and choice in housing in specified residential areas;
(c)allow for some non-residential uses where they are compatible with the amenity of residential localities; and
(d)encourage the retention of local facilities and services within specified residential areas for the convenience of the local community.
A single house is a 'P' use in the Residential zone. In LPS 3, a 'P' use is defined to mean 'the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme'. Of course, if the proposed development had complied with all of the relevant 'deemed to comply' provisions of State Planning Policy 3.1 Residential Design Codes (R-Codes), it would not have needed development approval at all: reg 10 and cl 61(c) of Sch 2 of the LPS Regulations.
The other relevant provision of the Scheme is cl 5.2.2 of LPS 3, which provides that 'unless otherwise provided for in the [S]cheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those codes'. In relation to the issues under consideration in this matter, there are no relevant provisions of LPS 3 that provide an exception to the requirement to comply with the RCodes as specified in cl 5.2.2 of LPS 3. Clause 5.5 of LPS 3 provides a general discretion to approve a development application despite non-compliance with a standard or requirement prescribed by the Scheme, however, not in relation to residential development.
Turning to the RCodes, cl 5.3.5 sets out the requirement for vehicular access for residential development. The deemed to comply requirement, contained in C5.1, specifies the following:
access to onsite car parking spaces to be provided:
•where available, from a right of way available for lawful use to access the relevant in which is adequately paved and drained from the property boundary to the constructed street;
•from a secondary street where no rightofway exists; or
•from the primary street frontage when a secondary street or rightof-way exists.
The relevant design principle, which is P5.1, provides that:
vehicular access provided for each development site to provide:
•vehicle access safety;
•reduced impact of access points in the streetscape;
•legible access;
•pedestrian safety;
•minimal crossovers; and
•high-quality landscaping features.
There are no other relevant State Planning Policies applicable to the proposed verge works.
Issues
The parties identified the issues for determination in this matter as follows.
1)Whether the proposed vehicular access to the site from Deane Street satisfies the design principles of cl 5.3.5 of the RCodes and requirements of LPS 3 (as amended by the LPS Regulations).
2)Whether the proposed vehicular access to the subject property from Deane Street is contrary to orderly and proper planning and would reduce the amenity, character and streetscape quality of the locality.
The Tribunal is satisfied that this formulation of the issues reasonably encapsulates the relevant matters required to be considered under cl 67(a) to cl 67(c) and cl 67(n) of Sch 2 of the LPS Regulations. As indicated above, the Tribunal also considers the matters identified in cl 67(r), cl 67(w), cl 67(za) and cl 67(zb) of Sch 2 of the LPS Regulations are relevant to this development application and therefore the Tribunal must also have due regard to these in determining this application.
Compliance with cl 5.3.5 of the RCodes
The applicant submits that the proposed vehicular access to the site from Deane Street meets the deemed to comply requirements specified in C5.1 of cl 5.3.5 of the RCodes. This is based on the assertion that the laneway to the rear of the site is not adequate and therefore there is effectively no rear right of way or secondary street from which vehicular access could be obtained. In addition, the applicant submits that in light of the proposed subdivision of the site, the proposed vehicular access will be the only possible vehicular access for the new lot on which the proposed single dwelling will be constructed. It is submitted that C5.1 of cl 5.3.5 of the RCodes requires access to on-site car parking spaces from the primary street frontage in each of these circumstances.
The applicant also submits that the proposed vehicular access meets the design principles specified in P5.1 of cl 5.3.5 of the RCodes.
In making these submissions, the applicant relies on the evidence of Ms Denise Morgan, town planner, and of Mr Jonathan Riley, traffic engineer.
The respondent submits that the laneway in question is adequately paved and drained and is trafficable. On this basis, the proposed vehicular access does not meet the preference for such access to be provided from a rear right of way or a secondary street contained in the deemed to comply provisions of the RCodes.
The respondent further submits that the proposed vehicular access does not meet the relevant design in the RCodes.
In support of its submissions, the respondent relies on the evidence of Mr Andrew Jackson, the respondent's Manager Development Services, and Mr Sam Laybutt, a town planner who works as a transport planner and road safety auditor.
From the site view conducted by the Tribunal, it is apparent that the lane is bitumenpaved, with some potholes and signs of pothole repair of varying standards. It does not appear to be constructed to the standard of a public road. It is apparent that a number of vehicles regularly access the lane, and it appeared to be trafficable in all weathers to ordinary domestic vehicles.
In older residential areas, it is not uncommon for rear laneways to be about 3 metres wide. The use of such lanes for vehicle access is common, even though they are of lesser width than the minimum standard recommended for vehicle access ways in 'rear loaded' lots in new subdivisions and within grouped dwelling developments.
The Tribunal is of the view that the width of the lane is not a factor that is determinative of this matter. The lane has been used for vehicle access for a long time, is currently used for this purpose and will be in the future. The site has used the lane for access in the past. The proposed development would not have such an impact on vehicle movement in the lane that it would create an undesirable traffic movement problem that, of itself, would compel the construction of an alternative means of vehicle access, such as from Deane Street.
The Tribunal is not persuaded by the applicant's submission that the lane is 'not adequately paved and drained' within the meaning of that phrase as used in the deemed to comply requirement in C5.1 of cl 5.3.5 of the RCodes.
We are also not persuaded by the proposition that there is effectively no available right of way because the proposed subdivision would isolate the site from the lane. The Tribunal does not consider that it should make a decision on the merit of this development because of a potential impact that decision might have on a different application before a different body. The Tribunal has before it an application for development in a particular form on the unsubdivided site, which has frontage to both Deane Street and the lane. The existing factors particular to that development proposal are to be considered. The Tribunal does not believe it should place any significant weight on what might potentially be future cadastral boundaries, or to proceed on the basis that it is performing one step on the way to the achievement of some future project outcome.
The Tribunal is not satisfied that the proposed development meets the deemed to comply requirements as it does not propose access from the available right of way. Therefore, it is necessary to consider whether the proposed development addresses the relevant design principles, which in this case are in P5.1 of cl 5.3.5 of the RCodes.
Although the witnesses addressed all of the aspects of P5.1 of cl 5.3.5 of the R-Codes, ultimately there was only substantial disagreement between them in relation to pedestrian safety. In terms of vehicular safety, Mr Riley and Mr Laybutt agreed that the current driveway and crossover to No 17 Deane Street is substandard and that the current reversing movement of vehicles using this is undesirable in terms of safety. They also agreed that the proposed verge works improve that situation by allowing vehicles using this driveway to exit in forward gear and also providing improved sight lines for vehicles at the crossover.
Mr Laybutt and Mr Riley also agreed that the proposed development brought with it an increase in the risk to pedestrians using the proposed pedestrian footpath. Mr Riley considered this increase to be a minor one and, because there is minimal use of the footpaths by pedestrians in the area, the increase in risk, in his opinion, is minimal.
It was Mr Laybutt's opinion that the increase in risk to pedestrians arises from a combination of the steep gradients involved in the footpath descending to the level of Deane Street and then ascending back up to the current footpath, the crossfalls at the interface between the driveway and the footpath, and the location of the footpath immediately adjacent to Deane Street.
Mr Laybutt accepted that the area is a low speed environment with relatively low use. However, when looking at the risk as compared to the current situation, it was his view that there is a significant increase in probability and in severity of potential consequences for pedestrians. He concluded, therefore, that the increase in risk was moderate.
The Tribunal preferred Mr Laybutt's opinion in relation to risk to pedestrian safety. Mr Laybutt appropriately conceded that this was a low speed and low use environment. In our view, his opinion was logical given the significant changes to the pedestrian environment that are proposed in this location. The footpath is currently well separated from the road, in terms of height and distance, and is relatively level. As such, it is difficult to comprehend how there is any risk, at present, to pedestrians from vehicles travelling Deane Street. Compared to this, the proposed verge works will result in pedestrians being brought adjacent to the road for a short distance before ascending up the verge in a shared space with vehicles.
In any event, Mr Riley also accepted that the proposed development involved an increase in risk to pedestrian safety, albeit a minimal increase. The Tribunal is satisfied that, in the context of this matter, an increase in risk to pedestrian safety caused by the proposed verge works means that the proposed development does not sufficiently provide for pedestrian safety. Therefore, the proposed development does not satisfy the design principle P5.1 of cl 5.3.5 of the RCodes.
In light of cl 5.2.2 of LPS 3, this failure to comply with the RCodes means that the proposed development is inconsistent with the provisions of LPS 3.
Impact on amenity, character and streetscape
The proposed verge works introduce a driveway that requires the complete removal of a section of the existing embankment in the verge adjacent to the site. The proposal would also require cutting back sections of the face of the embankment to provide sight lines and new footpaths up the slope.
It was Ms Morgan's view that the embankment does not present a particularly attractive frontage and that the proposed verge works provide an opportunity to improve the appearance of the verge area with the quality of materials used and landscaping. In her assessment of the proposed verge work's impact on the amenity, character and streetscape, it was of importance that the embankment is not a natural feature. Ms Morgan considered that as the embankment is a manmade construct with no historical significance, the alteration of that feature, so long as suitably attractive, would not detrimentally impact on amenity or the streetscape.
The Tribunal was not persuaded by Ms Morgan's opinion. In the Tribunal's view, the embankment is a significant existing visual feature in the relevant portion of Deane Street. Over time, it has developed an appearance consistent with its near beachside location. It is part of the existing streetscape and forms part of the character and amenity of the locality. The Tribunal is not satisfied that the fact that the embankment is manmade rather than natural makes any difference in this case.
The proposed development would introduce a gap in the embankment where before there was no gap. There are no other similar gaps cut into the embankment to road level on Deane Street. We are satisfied that such a change would have a significant impact on the appearance of the streetscape.
The Tribunal finds that the impact of the proposed development would be unacceptable because the removal of part of the significant element that characterises the streetscape the embankment would be detrimental to the streetscape and to the amenity of the locality.
Other relevant matters and conclusion
The following points can be made about other matters to which the Tribunal must have regard in determining this application.
Firstly, in relation to suitability of the site for the development, the proposed verge works would require the relocation of a number of services currently located in the verge area. On the evidence before the Tribunal, this could likely be resolved by spending sufficient money on an engineering solution. What was not clear to the Tribunal was what disturbance to the ground each side of the site would be required. Of itself, however, relocation of the services was not a significant concern.
Secondly, as a matter of the history of the site, the site has always had access from the lane with no vehicular access from Deane Street. This is not a matter of significant weight, but is a matter that the Tribunal has had regard to.
Thirdly, although the Tribunal was not satisfied that the existing subdivision proposal was relevant to its determination, we note that we were nonetheless satisfied that to refuse the proposed development would not sterilise the site from any subdivision potential. Both planners agreed that this was the case.
Finally, the Tribunal has before it a submission from the owners of No 17 Deane Street (neighbours). In the particular context of this matter, where the proposed verge works directly impact the verge adjacent to the neighbours' property and the neighbours' existing driveway, it is our view that we should give this submission more weight than might otherwise have been appropriate. The neighbours object to the introduction of a footpath onto their driveway and the risks they perceive would arise in relation to the consequent interaction between vehicles and pedestrians using the same driveway. The neighbours also object to the proposed turning head to be created and assert that it will not work. They say that for the turning head to work properly, any cars parked on their property would need to be parked at right angles to Deane Street. However, they submit that their cars only fit in the parking area if parked on an angle with their fronts in a southwestern direction. The neighbours also object to the loss of the opportunity to park on their driveway, which they submit will occur because they will not be allowed to block the footpath part of the driveway.
The proposed development relies in part on the neighbours changing their established driving patterns for entering and leaving, and the way they currently park on their property, in order to descend the driveway in forward gear. Such changes are necessary to reduce the risks to pedestrians and to avoid potential conflict between cars on the driveway and cars entering or leaving the site. The Tribunal is concerned that the proposed verge works therefore require the neighbours, who are not party to the proposed development, to behave in a certain way. In our view, the proposed verge works should be workable no matter what the neighbours do, and in this instance, this not the case.
Balancing all these factors, as well as our conclusions in relation to the impact on amenity, character and streetscape and the failure of the proposed development to adequately address the relevant design principle, the Tribunal is satisfied that the correct and preferable decision is to refuse to give development approval.
Orders
The Tribunal makes the following orders:
1.The application is dismissed.
2.The decision of the respondent on 14 December 2015 to refuse the proposed development is affirmed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER