Myburgh and Town of Claremont - [2009] WASAT 26

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MYBURGH and TOWN OF CLAREMONT [2009] WASAT 26

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 18 FEBRUARY 2009

FILE NO/S: DR 497 of 2008

BETWEEN: GABRIEL MYBURGH
Applicant
AND
TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning - Development application - Single house - Setback - Detailed area plan - Whether minimum setback for garage is 2 metres or 5.5 metres - Whether front setback is compliant - Words & phrases: 'designated', 'proposed'

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 5.3.1(a), cl 6.2.1 A1.1, cl 6.2.1 A1.1(i), Table 1
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town of Claremont Town Planning Scheme No 3

Result:

Application for review allowed in part - proposed garage is compliant, but front setback is not compliant

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Ms K Bacon (Public Sector Employee)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Filton Pty Ltd and Town of Vincent [2006] WASAT 70

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned whether the proposed setback of a garage from a rear lane and the proposed setback of a house from the street complied with the planning framework.
Development of the site was subject to a detailed area plan that showed a 'proposed' garage/carport location which had a greater setback than the garage in the development application. The detailed area plan specified a minimum front setback of 4.5 metres, whereas the proposed development contained a section with a setback of 3.93 metres.
The Tribunal determined that the proposed garage was compliant with the planning framework. On its proper interpretation, the detailed area plan did not impose a mandatory requirement in relation to the location of the garage. The detailed area plan specified a minimum setback of 2.0 metres for the garage, which was satisfied. The garage/carport location shown on the detailed area plan was merely a suggestion rather than a nomination.
The Tribunal determined that the front setback of the house was not compliant with the planning framework. The development did not comply with the minimum front setback standard and involved an extension of the designated building envelope, which was not appropriate.
The Tribunal decided that it should grant development approval for the house and garage subject to a condition that the house must be set back a minimum of 4.5 metres from the street and other reasonable and appropriate conditions.

Introduction

These proceedings involve an application brought by Mr Gabriel Myburgh, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the deemed refusal by the Town of Claremont (Town or Council) of a development application for a single house at No 8c (Lot 304) Devon Road, Swanbourne (site).

Background

The site forms part of an 18 lot subdivision of the former Swanbourne Primary School site. The site is rectangular in shape and has an area of 373 square metres. Vehicular access to the site is not permitted from Devon Road, but is required to be from Brian Walker Lane to its rear.
The proposed house would be set back 4.5 metres from Devon Road, with the exception of a 570 millimetre wide by approximately 5.7 metre long cantilevered section off the master bedroom retreat on the second level, which would be set back 3.93 metres from the road. The garage at the rear is proposed to be set back 2.0 metres from Brian Walker Lane, with the balance of the house set back at least 5.5 metres from the lane.
Development of the site and of the other lots in the former Swanbourne Primary School subdivision is subject to a local planning policy DS ‑ 35 Detailed Area Plan Former Swanbourne Primary School (Detailed Area Plan) which was prepared and adopted by the Town under the Town of Claremont Town Planning Scheme No 3. The Detailed Area Plan contains two parts, a written part comprising 22 clauses and four notes, and a sketch plan.

Issues for determination

The Town has identified the following two issues for determination in this review:
1)Whether the minimum setback for the garage required by the Detailed Area Plan is 2.0 metres or 5.5 metres.
2)Whether the front setback of the proposed house is compliant with the planning framework and acceptable.
The Tribunal will address each of these issues in turn.

What is the minimum setback required for the garage?

Relevant provisions of Detailed Area Plan

The Detailed Area Plan includes the following clauses:
3.All dwellings shall be located within the designated building envelopes;
…
8.A minimum setback of 2 metres or 5.5 metres from the rear boundary applies in the case of a garage except on Lot 306 where a minimum 5.5 metre setback applies.
9.Double garages/carports are mandatory on all allotments;
…
11.A minimum of 1 visitor bay shall be provided on all lots; …
The sketch plan in the Detailed Area Plan identifies the 'building envelope' of each of the 18 lots in the subdivision by grey shading. In each case, the 'building envelope' includes the location of a double garage or carport.
Eight of the garage or carport locations shown on the sketch plan have a setback of 2.0 metres from the rear lane, whereas 10, including the location on the site, have a setback of 5.5 metres from the rear lane. In the case of the eight lots where the location of the garage or carport shown on the sketch plan has a setback of 2.0 metres from the lane, the sketch plan shows the location of a single visitor car parking bay next to the garage or carport, which is the maximum number of visitors' cars that can be accommodated between the location of the garage or carport and the side boundary of the lot. In contrast, the sketch plan shows the location of two visitors' car parking bays between the garage or carport and the lane in the case of the 10 lots where the garage or carport has a setback of 5.5 metres.
The sketch plan depicts the location of the double garage or carport on a lot in two different ways. In the case of 15 of the lots, the location of the garage or carport is indicated by 'X', which the legend identifies as 'Proposed Garage/Carport Location' (emphasis in bold added). In contrast, in the case of three of the lots, the location of the garage or carport is indicated by vertical hatching, which the legend identifies as 'Designated Garage/Carport Location' (emphasis in bold added). Of the 15 'proposed' garage or carport locations, eight have a setback of 5.5 metres from the lane and seven have a setback of 2.0 metres from the lane. Of the three 'designated' garage or carport locations, two have a setback of 5.5 metres from the lane and one has a setback of 2.0 metres from the lane.

Parties' submissions

Mr Myburgh argued that the wording of cl 8 of the Detailed Area Plan is 'clear and unambiguous', and, in the case of the site, confers an option as to whether to locate the garage with a setback of 2.0 metres or 5.5 metres from the rear boundary. Mr Myburgh also emphasised that the location of the garage or carport on the site shown on the sketch plan in the Detailed Area Plan is only a 'proposed' location, whereas the garage or carport location for certain other lots in the subdivision is 'designated'. Mr Myburgh submitted that:
A designer of a residence on [the site] is free to locate the garage elsewhere on the Lot provided that the balance of [the Detailed Area Plan] is complied with, most particularly clause 8.
In contrast, the Town argued that:
The [Detailed Area Plan] for all lots inclusive of [the site] graphically shows the garage contained within the building envelope. Furthermore, the [Detailed Area Plan] graphically identifies the required setback to the garage, which in the case of [the site] is set back 5.5 metres from the rear boundary.
The Town also noted that, whereas the sketch plan in the Detailed Area Plan shows the location of two visitors' car spaces between the proposed garage or carport location on the site and the lane, the proposed development can only accommodate a single visitor space, because of the projection of the garage to a setback of 2.0 metres from the lane. The Town contended (but did not present any qualified evidence) that an additional on‑site visitor parking space is required to ensure adequate car parking and to avoid vehicles parking in the lane.
Finally, the Town referred to condition 15 of the subdivision approval, which required the preparation and adoption of design guidelines, and to an advice note which said that the design guidelines were to have regard to, among other things, the location of garages.

Tribunal's decision

The Tribunal considers that the Detailed Area Plan permits the garage on the site to have a minimum setback of 2.0 metres from the rear lane and does not require it to have a minimum setback of 5.5 metres.
There are two textual indications in cl 8 of the Detailed Area Plan which suggest that the garage or carport location shown on the sketch plan is not mandatory in the case of the site.
First, cl 8 uses the disjunctive 'or' to indicate that the development of the lots can proceed in accordance with either setback option indicated on the sketch plan.
Second, cl 8 expressly excludes Lot 306 from having this option and says that it must have a minimum setback of 5.5 metres to the garage. If, as the Town contends, the garage or carport location shown on the sketch plan is mandatory, it would have been unnecessary to expressly require in cl 8 that the garage of Lot 306 must have a minimum setback of 5.5 metres, because the location of the garage or carport shown on the sketch plan for that lot has this setback. The specific reference to another lot which must have a minimum setback of 5.5 metres for the garage is a compelling indication that the Detailed Area Plan does not require the site to have the minimum setback for the garage shown on the sketch plan.
Furthermore, the sketch plan itself distinguishes between 'proposed' garage or carport locations, which include the location on the site, and 'designated' garage or carport locations.
The verb 'propose' is relevantly defined in The Macquarie Dictionary (Macquarie, Sydney, 4th Edition, 2005) at page 1140 as follows:
To put forward or suggest as something to be done: he proposed that a messenger be sent.
The verb 'designate' is defined at page 390 as follows:
1. to mark or point out; indicate; show; specify. 2. to name; entitle; style. 3. to nominate or select for a duty, office, purpose, etc; appoint; assign.
Therefore, whereas 'proposed' relevantly means suggested, 'designated' relevantly means indicated, specified, nominated or selected.
Two of the three lots in relation to which the garage or carport location is 'designated' are at the end of a laneway, and the designated location has a setback of 5.5 metres. There is obvious planning merit, if not necessity, in indicating, specifying, nominating or selecting, rather than merely suggesting, a minimum setback of 5.5 metres, rather than 2.0 metres, for these lots, in order to preclude the prospect of a vehicle having to reverse down the laneway. The third lot in relation to which the location of the garage or carport is 'designated' is at the beginning of a laneway. This 'designated' location has a setback of 2.0 metres. It would appear that the planning purpose of indicating, specifying, nominating or selecting, rather than merely suggesting, the location of the garage or carport on this property with a 2.0 metre setback is to establish a desired streetscape for the lane.
Whatever the planning purpose in selecting these three out of 18 lots to 'designate' the garage or carport location, rather than merely to 'propose' it, the use in the Detailed Area Plan of the contrasting expressions 'Proposed Garage/Carport Location' and 'Designated Garage/Carport Location' clearly indicates that the location of the garage identified on the sketch plan for the site is, as Mr Myburgh submitted, 'nothing more than a suggestion of location and does not import any notion of compulsion'.
While the location of the proposed garage in this case extends beyond the 'building envelope' depicted on the Detailed Area Plan, the Detailed Area Plan does not require that the garage on the site must be contained within the building envelope. As noted earlier, cl 3 of the Detailed Area Plan requires that '[a]ll dwellings shall be located within the designated building envelopes' (emphasis in bold added). Note (c) in the Detailed Area Plan states that '[t]he definition of 'dwelling' as contained in the [Residential Design Codes of Western Australia (2008) (Codes)] shall apply'. The term 'dwelling' is defined in the Codes as follows:
A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family. (Emphasis in bold added)
The term 'building' is defined in the Codes as follows:
Any structure whether fixed or moveable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools. (Emphasis in bold added)
In Filton Pty Ltd and Town of Vincent [2006] WASAT 70 at [73], the Tribunal held, in relation to identical definitions of 'dwelling' and 'building' in the 2002 version of the Codes, as follows:
The clear contemplation of the definitions of the terms 'dwelling' and 'building' is that a garage is appurtenant to a dwelling but does not form part of a dwelling for the purposes of the Codes. The Tribunal is unable to discern any legislative intent or purpose in the Codes which suggests a contrary interpretation.
An amendment which was made to the definition of 'garage' in the current version of the Codes provides further support for this view. The definition of 'garage' is now as follows:
Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles and attached to the dwelling. (Words in bold added in current version of Codes)
As a 'garage' is not a 'dwelling' or part of a 'dwelling' for the purposes of the Codes and, hence, the Detailed Area Plan, but rather is a structure that is appurtenant or attached to a 'dwelling', the Detailed Area Plan does not require that the garage on the site must be located within the designated 'building envelope' for the site.
While it is correct that the proposed development would reduce on‑site visitors' car parking from two spaces to one space, when compared with the suggested garage location on the sketch plan, this reduction is consistent with cl 11 of the Detailed Area Plan which states that '[a] minimum of 1 visitor bay shall be provided on all lots'. Furthermore, as the garage or carport location is only suggested, rather than selected, for seven lots where the location has a setback of 2.0 metres on the sketch plan, it may suit the design of one or more of those lots to have a minimum setback of 5.5 metres for the garage, rather than 2.0 metres, and thereby accommodate a total of four cars on-site.
Finally, condition 15 and advice note 6 of the subdivision approval do not warrant a different conclusion. Insofar as the Detailed Area Plan contains design guidelines, the guidelines have regard to the location of garages. However, whereas the Detailed Area Plan specifies the location of the garage or carport on three of the lots, it merely suggests the location on the remaining 15 lots, subject to cl 8, which prescribes a minimum setback of 2.0 metres for the garage or carport on these 15 lots.

Is the front setback compliant?

Relevant provisions of Codes and Detailed Area Plan

Clause 6.2.1 A1.1 of the Codes contains the following acceptable development provision in relation to the setback of buildings:
Buildings set back from the primary street in accordance with Table 1; or
(i)corresponding to the average of the setbacks of the existing dwellings on each side fronting the same street; or in accordance with Figure 1(a), reduced by up to 50% provided that the area of any building, including a carport or garage, intruding into the setback area is compensated for by at least an equal area of contiguous open space between the setback line and the line drawn parallel to it at twice the setback distance; …
Table 1 of the Codes relevantly specifies a minimum primary street setback of 6.0 metres. However, cl 5 of the Detailed Area Plan states as follows:
A minimum front (primary) street setback of 4.5 metres applies to all lots;

Parties' submissions

Mr Myburgh contended that he could obtain the benefit of both cl 5 of the Detailed Area Plan and the averaging provision in cl 6.2.1 A1.1(i) of the Codes. Mr Myburgh argued that, with the benefit of the reduced minimum setback from 6.0 metres to 4.5 metres in the Detailed Area Plan, and the averaging provision in the Codes, the proposed development is compliant with the planning framework in relation to the front setback of the building.
In contrast, the Town contended that the Detailed Area Plan has replaced the setback provisions in the Codes. The Town argued that the 570 millimetre wide by approximately 5.7 metre long projecting section at the second level of the proposed dwelling does not comply with the planning framework and should be refused.

Tribunal's decision

The Tribunal considers that the proposed development is not compliant with the applicable planning framework in relation to the front setback and that the part of the building which projects closer than 4.5 metres to Devon Road should be deleted.
Clause 5.3.1(a) of the Codes states that local planning policies may contain provisions that vary or replace the acceptable development provisions set out in design element 6.2, which includes cl 6.2.1 A1.1. In this case, cl 5 of the Detailed Area Plan has replaced the acceptable development provision in cl 6.2.1 A1.1 of the Codes, by allowing a reduced front setback but not incorporating the averaging provision.
Furthermore, and in any case, the proposed development would not satisfy the acceptable development provision in cl 6.2.1 A1.1 of the Codes, if that provision applied. This is because the area of the building intruding into the setback area of 4.5 metres is not compensated for by an equal area of contiguous 'open space'. The term 'open space' is defined in the Codes as '[g]enerally that area of a lot which is not occupied by any building …'. In this case, while the entry to the proposed dwelling has a greater setback than 4.5 metres from Devon Road, and the area of this additional setback is greater than the area of the building on the second level that projects closer than 4.5 metres to Devon Road, the additional setback area for the entry is a part of the lot that is occupied by a building, namely, the master bedroom retreat on the level above.
Finally, even if the proposed front setback were strictly compliant with the planning framework, the Tribunal would have refused to grant approval for this part of the development in the exercise of planning discretion, because it is not located within the designated building envelope in the Detailed Area Plan. While cl 21 of the Detailed Area Plan allows approval of 'minor modifications to the building envelope', there does not appear to be any particular circumstance of the site which would warrant or justify an expansion of the building envelope. Furthermore, the proposed projection of the upper level closer than 4.5 metres to Devon Road would have a detrimental impact on the streetscape of Devon Road. This is because the projection would be inconsistent with the setbacks of buildings constructed within the building envelopes designated for other lots in the subdivision and would have an adverse visual impact owing to its bulk and scale.

Conclusion

The Tribunal has determined that the proposed garage complies with the Detailed Area Plan, whereas the front setback of the proposed dwelling does not comply with the planning framework.
It follows that the proposed development should be approved, subject to a condition that the building shall be set back a minimum of 4.5 metres from Devon Road and other reasonable and appropriate conditions.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.The deemed refusal by the respondent of a development application for a single house and garage at No 8c (Lot 304) Devon Road, Swanbourne is set aside and a decision is substituted that development approval is granted subject to reasonable and appropriate conditions to be determined in accordance with the following orders.
3.By 27 February 2009, the parties must confer with one another and prepare and file a statement setting out the conditions proposed by the respondent and, in relation to any condition disputed by the applicant, each party's contentions in relation to that condition.
4.The Tribunal will determine the conditions to be imposed entirely on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER