Pienaar and City of Subiaco
[2013] WASAT 205
•19 DECEMBER 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PIENAAR and CITY OF SUBIACO [2013] WASAT 205
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 DECEMBER 2013
FILE NO/S: DR 126 of 2013
BETWEEN: ANDREA PIENAAR
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Development Location of car parking bay within front setback area Right of way Sightlines for reversing vehicle R Codes Outdoor living area Surrounding area Established neighbourhood character Car parking area Onsite landscaping and street trees Opening up of streetscape 'Horse has bolted' argument
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 39, cl 39(3), cl 41, cl 41(2), cl 41(2)(f), cl 41(2)(g)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2013), Pt 2, Pt 5, Pt 7, Pt 7.1, Pt 7.3.1(b)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review allowed
Summary of Tribunal's decision:
The application for review was lodged against a decision of the City of Subiaco to refuse the location of a car parking bay within the front setback area at No 41 (Lot 103) Yilgarn Street, Shenton Park. The car parking bay would be accessed by a newly constructed driveway/crossover.
In undertaking this review the Tribunal considered the position of the parties within the context of the existing legislation and policy framework. Additional matters such as vehicular access to the subject site from the existing rear right of way and issues of sight lines for a vehicle reversing from the front of the property, landscaping and streetscape were also addressed.
The Tribunal found that an approval in this case would help to preserve the character of the original housing stock by opening up the streetscape through the removal of a 1.8 metre high brick wall to allow access to an open, unroofed car parking space and the construction of an already approved permeable and lower front picket fence. An approval would also allow better viewing of a residence listed on the City of Subiaco Municipal Heritage Register, and would take away the risk of the applicant choosing to do nothing if her application was refused; thereby retaining the existing brick wall and an onstreet car parking space to the detriment of the streetscape.
The application for review was allowed.
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Adrian Zarb (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Tooth and City of Subiaco [2005] WASAT 317
Trickey and City of Subiaco [2005] WASAT 256
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter involves an application, dated 8 April 2013, by Ms Andrea Pienaar (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of a refusal by the City of Subiaco (City, Council or respondent) on 12 March 2013 to grant planning approval for a car parking bay (and associated driveway/crossover) at No 41 (Lot 103) Yilgarn Street, Shenton Park (subject site), and a condition of planning approval relating to a new front picket fence that was unacceptable to the applicant.
On the application before Member Rebecca Moore on 7 June 2013, and again on 19 July 2013, and pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the Tribunal invited Council to reconsider its decision.
At a meeting of the City's Development Services Committee on 10 September 2013, it was resolved:
That Council … vary its previous decision dated 12 March 2013 … as follows:
1.Insofar as the application relates to the removal of the existing brick wall and construction of a picket fence, is APPROVED …
2.Insofar as the application relates to the proposal of a car parking bay to the front of the driveway, is REFUSED for the following reason:
(a)The proposed car bay would not satisfy Part 6.0 Access and Location of Local Planning Policy 3.7 Residential Car Parking, as it would be located in the least preferred position of the site[.]
As a result of Council's decision of 10 September 2013, the Tribunal's reasons for decision will be confined to the respondent's refusal of the proposed car parking bay (and associated driveway/crossover) at the front of the subject site.
Subject site and surrounds
The subject site is No 41 (Lot 103) Yilgarn Street, Shenton Park. It is all that land comprised in Certificate of Title Volume 1000 Folio 450 on Deposited Plan 579. It has an area of 324 m² with a frontage to Yilgarn Street of 10.06 metres and a lot depth of 32.3 metres.
The subject site is improved with a single storey weatherboard cottage, with zincalume roof, constructed in the early part of the 20th century. It has a variable setback to the front boundary ranging from approximately 4 to 6 metres. To the rear of the building is an attached covered outdoor living area (adjacent to the southern boundary) and an outbuilding (containing a laundry and toilet) in the southwest corner of the lot. The subject site has an open barbeque area to the northern side of the lot at the rear with direct gate access to a 3 metre wide rear laneway (right of way). There is a brick fence, approximately 1.8 metres high, on the front boundary with gate access to Yilgarn Street.
The dwelling is listed on the City's Municipal Heritage Inventory with a management category of Level 1 (Exceptional), but is not included on the City's Register of Cultural Heritage Places.
Within the 'surrounding area', defined as five properties on either side of the proposed development on both sides of the street that the dwelling is oriented towards, are 21 dwellings (five dwellings to the north, five dwellings to the south and 11 dwellings opposite). Of these 21 dwellings, 10 have a vehicle crossover to Yilgarn Street.
Along the entire street, 63 properties have either direct access or side road access to Yilgarn Street. Of these 63 properties, 34 have crossovers to the street.
Overall, the development along Yilgarn Street is entirely residential, with a mixture of period cottages and recent infill development.
Proposed development
The proposed development would comprise the following:
(a)the demolition of the existing 1.8 metre high brick wall;
(b)the construction of a replacement picket fence (with front entry gate and a sliding gate to allow vehicular access); and
(c)the construction of a vehicular driveway/crossover between two existing street trees, on the street verge, to allow access to a single onsite car parking bay on hardstand at the front of the dwelling.
As advised at [4] above, it is only the matter at paragraph (c) that will be addressed in these reasons for decision.
Planning framework
The subject site is zoned Urban in the Metropolitan Region Scheme and Residential under the City of Subiaco Town Planning Scheme No 4 (TPS 4). It has a density coding of R20.
Of relevance to this matter are the following planning instruments:
(a)State Planning Policy 3.1 Residential Design Codes (2013) (R Codes);
(b)TPS 4; and
(c)City of Subiaco Planning Policy 3.7 Residential Car Parking (PP 3.7).
With respect to the R Codes, the Tribunal has used the latest version as at 2 August 2013 in its assessment of this matter, rather than the previous variation of 22 November 2010. The reason for this is that the most recent version does not materially change the substance or intent of the 2010 R Codes with respect to the matters under consideration in this review.
Respondent's position
The position of the respondent is outlined in its written submissions of 25 October 2013. In summary, the respondent contends:
(a)The proposal would not satisfy cl 41(2)(f) and 41(2)(g) of TPS 4 as it would not enhance the amenity or preserve the character of the locality, and would not be compatible with the established character of the streetscape. This is because, of the 21 properties within the surrounding area, only 10 include vehicle parking within the front setback area. Therefore, the established character of the 'surrounding area' is for vehicle access and parking to the rear of the properties.
(b)The proposed crossover and associated vehicle parking area do not satisfy the deemedtocomply requirements or principles of Design Element 5.3.5 of the R Codes. This is primarily because the proposal would prevent the applicant from providing high quality landscaping in this location, in contrast to the stated requirement. Furthermore, the car parking bay is in close proximity to the front lot boundary, further limiting sightlines for oncoming pedestrians.
(c)The subject site has access to a laneway which would allow suitable access for one vehicle to park to the rear of the existing dwelling in accordance with Design Element 5.3.5 of the R Codes and Part 7 of PP 3.7.
Applicant's position
The position of the applicant is outlined in her written submissions received by the Tribunal on 24 October 2013. In summary, the applicant argues:
(a)The decision of Council to refuse the car parking bay was based on a previous policy which listed parking locations in order of preference, with the front setback stated as the 'least preferred'. The new policy does not have such a list and focuses more on carports and garages.
(b)The new policy aims to reduce the number of garages and carports located in front of dwellings. Our application will not require either a carport or a garage.
(c)The new policy states that in determining whether adequate car parking is provided on site for the purposes of Design Element 5.3.3P3.1 of the R Codes, Council shall have regard to existing site constraints such as the location of existing development on the site. We have a laundry and toilet built at the rear of the property, a built in barbeque connected to the main gas and a hot/cold shower located on the rear fence.
(d)The new policy states that in determining whether vehicular access meets Design Element 5.3.5P5 of the R Codes, Council shall have regard to whether the property abuts a right of way of sufficient width to enable manoeuvring into a garage or carport at the rear of the property. The angle needed for the applicant to reverse in and out is not possible because of existing infrastructure, the width of the lane and the length of our car (nearly 5 metres). Even if the shower was removed, there would only be a 4.5 metre space to get a 5 metre car in and out of a 3 metre laneway.
(e)There are only five houses on the applicant's side of Yilgarn Street who use the lane for onsite parking, four of which are newly built.
(f)Of the 21 properties (including the subject site) within the surrounding area, 10 have a crossover. Of the 64 houses on Yilgarn Street, 35 (or 55%) have a crossover.
(g)the congestion in Yilgarn Street is due to no verge parking and a narrow street. The applicant's car has been hit twice whilst parked on the street.
(h)The streetscape will be improved by demolishing the existing front boundary wall, the erection of a white picket fence in keeping with the heritage of the house, additional landscaping, and retention of existing trees on the front verge. There will be no carport or garage at the front of the property.
Planning issues
The principal planning issues agreed by the parties in their joint statement of issues and facts dated 16 October 2013 are:
1.The appropriateness of the location of vehicular access directly from Yilgarn Street having regard to the streetscape pattern of vehicle access within the surrounding development pattern.
2.Whether the proposed access location is consistent with the Respondent's Local Planning Policy 3.7 Residential Car Parking.
Assessment of the proposals
Legislative and policy provisions
State Planning Policy 3.1 Residential Design Codes of Western Australia (2013)
The provisions of the R Codes most relevant to this matter under Part 5 Design Elements for all single houses and grouped dwellings and multiple dwellings in areas coded less than R 30 include:
5.2.5Sightlines
Design principles
P5Unobstructed sightlines provided at vehicle access points to ensure safety and visibility along vehicle access ways, streets, rightsofway, communal streets, crossovers, and footpaths.
5.3.5Vehicular access
Deemedtocomply
C5.1 Access to on-site car parking spaces to be provided:
•where available, from a right-of-way available for lawful use to access the relevant lot and which is adequately paved and drained from the property boundary to a constructed street;
•from a secondary street where no right-of-way exists; or
•from the primary street frontage where no secondary street or right-of-way exists.
Design principles
P5Vehicular access provided for each development site to provide:
•vehicle access safety;
•reduced impact of access points on the streetscape;
•legible access;
•pedestrian safety;
•minimal crossovers; and
•high quality landscaping features.
7.3 Scope of local planning policies …
7.3.1
Local planning policies … may contain provisions that:
…
(b) augment the R-Codes by providing local housing objectives to guide judgements about the merits of proposals for any aspect of residential development that does not meet the requirements[,] or is not provided for, under the R-Codes.
The approval process is addressed under Pt 2 of the R Codes. It includes:
2.4 Judging merit of proposals
Where a proposal does not meet deemed-to-comply provision(s) of the R-Codes and addresses design principle(s), the decision[‑]maker is required to exercise judgement to determine the proposal.
Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).
…
2.5Exercise of judgement
…
2.5.2
In making a determination on the suitability of a proposal, the decision-maker shall exercise its judgement, having regard to the following:
(a) any relevant purpose, objectives and provisions of the scheme;
(b) any relevant objectives and provisions of the R-Codes;
(c) a provision of a local planning policy adopted by the decision-maker consistent with and pursuant to the RCodes; and
(d) orderly and proper planning.
City of Subiaco Town Planning Scheme No 4
The determination of planning applications is addressed under cl 27(4) of TPS 4. It states:
Without limiting the scope of the Council’s discretion to determine an application under subclause (3), the Council is to have regard to:
(a) the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b) any relevant planning policies;
(c) a statement of planning policy of the Western Australian Planning Commission;
…
(e) any submission accompanying or relating to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenity of the locality; and
…
(i) the conservation of places and areas of cultural heritage significance[.]
Then R Codes are addressed under cl 39 of TPS 4. Clause 39(3) states:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes.
The aims and objectives of areas zoned Residential are addressed under cl 41. Clause 41(2) of TPS 4 states:
In considering an application for development approval in the zones to which this division applies[,] the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the following objectives:
…
(f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock.
(g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping[.]
City of Subiaco Planning Policy 3.7 Residential Car Parking
This policy ('current' PP 3.7) was adopted by Council on 27 August 2013. At that time, the previously gazetted Residential Car Parking Policy (adopted 26 August 2008) was rescinded ('rescinded' PP 3.7).
The purpose of 'current' PP 3.7 is:
This policy provides guidance on the design and location of proposed car parking structures so as to preserve the existing streetscapes of residential areas, while recognising the need for owners and occupiers to have reasonable access to onsite car parking. This policy varies or replaces the deemed-to-comply requirements or identifies matters to be considered when applying the design principles of some elements of the R Codes. Specifically, the policy:
…
(6) identifies matters to be considered when applying the design principles in design element[s] 5.3.3P3.1 and 5.3.5P5[.]
The objectives of the 'current' PP 3.7 include:
…
(2) To reduce the access of car parking areas, garages and carports from the primary street where alternative access is available;
(3) In cases where existing site constraints restrict the location or access of car parking and car parking structures at or from the rear of the property, this policy aims to minimise the impact of car parking structures on the existing established neighbourhood character of the surrounding area[.]
Part 2.0 of PP 3.7 includes the following relevant definitions:
Surrounding Area means the five properties on either side of the proposed development on both sides of the street (excluding laneways/rightofways) that the dwelling is oriented towards.
Established Neighbourhood Character means the dominant visual characteristics of the surrounding area formed by the interrelationships of built form, vegetation and topographic characteristics in both the private and public domains within that area. The elements of the built form that contribute to established neighbourhood character are building height, front setbacks, orientation of buildings, side setbacks as viewed from the street, roof form and bulk. These elements do not include colours and finishes.
Identified Heritage Significance means those properties:
…
•Adopted on the city's Local Government Inventory[.]
In accordance with Pt 7.3.1(b) of the R Codes, the currently adopted PP 3.7, at Pt 7, has included additional design principles to assist in determining whether vehicular access meets Design Element 5.3.5 P5 of the R Codes. In determining a matter under this design element of the R Codes, Pt 7.1 (Design Principles) identifies that Council shall have regard to:
a) Whether the property abuts a right-of-way of sufficient width to enable manoeuvring into a garage or carport at the rear of the property;
b) Whether the property abuts a secondary street from which a crossover already exists or could be constructed;
c) Existing site constraints, including[:]
i. the location of existing development on the site; and
ii. the topography of the site;
d) Whether adequate space is available on the site to enable manoeuvring into a garage or carport located from a right-of-way;
e) The impact of any proposed garage or carport on the established neighbourhood character; and
f) Whether the subject property abuts a right-of-way over which it has a legal right-of-carriageway.
The matter of the 'rescinded' and 'current' Residential Car Parking Policy
The 'rescinded' PP 3.7 provided a hierarchy of preferences in relation to the location of vehicular parking. Part 6 of 'rescinded' PP 3.7 (access and location) explains:
In order of acceptability, possible locations and access arrangements for car parking areas and structures are as follows …:
6.1Rear Access Located to the rear of a property behind the dwelling, not accessed by or visible from the primary street. Lots that have vehicular access via a rightofway should use the rightofway for access to all required carparking facilities. (Most Acceptable)
6.2 Secondary Street Located and accessed off a secondary street behind the dwelling, not visible from the primary frontage of the dwelling.
6.3 Front Access Accessed off the primary street and located at the rear of the property.
6.4 Side of dwelling Located behind the primary building line, alongside the dwelling and accessed off the primary street.
6.5 Front of dwelling Car parking areas and structures (excluding garages) located forward of the primary building line (in front of the dwelling). (Least Acceptable)
What is clear to the Tribunal is that under the 'rescinded' PP 3.7, the term 'car parking areas' is given prominence. For instance, in the Introduction it states:
… The City recognises the need for owners and occupiers to have reasonable access to onsite car parking, but intends to minimise the detrimental impact of inappropriately located onsite car parking areas and structures on existing streetscapes, whilst protecting the safety of the public. The City also recognises that with the diversity of streetscapes in the area, it is appropriate in some instances to vary the standards of vehicular access and car parking, as specified in section 8.0 of this Policy.
Again, the term 'car parking areas' is specifically defined in the text as 'those formal and informal areas used for the parking of motor vehicles as approved by the City'. The term 'car parking areas' is differentiated from 'car parking structures' (carports, garages, etc) and is repeatedly referred to in the text of the policy.
Under section 8 (Variation of Standards) of the 'rescinded' PP 3.7, it states:
The Council may approve a variation to the acceptable standards, location and/or access to onsite car parking requirements under one or more of the following circumstances:
…
8.2Where there is, in surrounding development, a suitable existing pattern of parking within the street setback area (nominally greater than 50%). …;
…
8.6Where there is insufficient space to enable adequate manoeuvring into a rear parking space;
8.7Where there is insufficient space at the rear of the property to provide both the required number of onsite car bays and the minimum outdoor living area requirements stipulated in the Acceptable Development Provisions of the Codes[.]
Under the 'current' PP 3.7 there is limited reference to 'car parking areas' with the policy focussed on garages and carports. Again, there is no 'hierarchy of preferences' in relation to the location of vehicular parking as explained in [29] above.
Just what can be drawn from these differences between the 'rescinded' PP 3.7 and the 'current' PP 3.7 is difficult to say, but what is clear to the Tribunal is that if the application for development approval was lodged on or after 27 August 2013, any refusal of a car parking bay at the front of the property on the basis of it being the 'least preferred position of the site' would need to have been made under Pt 5 of the R Codes, or the discretionary provisions of cl 27(4) of TPS 4, and not by reference to any specific provision of the 'current' PP 3.7.
The matter of vehicular access from the rear right of way and site constraints
In the respondent's written submission of 25 October 2013, it is advised:
(a)The existing right of way is 3 metres wide.
(b)Any car parking area would be required to be set back 3 metres from the right of way with a 1.5 metre truncation on either side to meet the provisions of the R Codes. This can be achieved.
(c)There are no site constraints, apart from any existing sunken area, which could be filled to facilitate access to parking from the rear laneway.
In the applicant's undated response to the respondent's written submission, it is advised:
(a)The respondent has not taken into account the turning circle of the applicant's car, the amount it will cost to develop parking of the right of way, and the actuality of having to reverse in and out of such a small space into a narrow laneway.
(b)Other factors that would be affected by a rear car parking space include a building containing a laundry, a clothes line on the side of the laundry, a builtin barbeque, a hot/cold shower on the back fence, and the difficulty of getting in and out of a vehicle with a nearby retaining wall.
In the view of the Tribunal, there is little doubt that a small to medium sized vehicle could be manoeuvred into a rear car parking space, but that the degree of difficulty in doing so would increase with the size of vehicle. Also, it is clear that the construction of a rear car parking space would come at a considerable cost to the existing onsite amenity enjoyed by the residents.
The matter of sightlines
In the respondent's written submissions of 25 October 2013, it is advised at paragraph 15(b):
Sightlines from the proposed vehicle parking area to the pedestrian footpath are less than that required by the DeemedtoComply Requirements of Element 5.25 of the RCodes. Consequently, pedestrian safety could be compromised.
In the applicant's undated response to the respondent's written submissions, it is advised:
•It seems ludicrous that pedestrian safety be deemed more important than the safety of the applicant's family in this situation. The applicant's car has been hit twice by other vehicles whilst parked in the street.
It is clear to the Tribunal that the proposed front picket fence with sliding gate would not meet the sightline provisions of the R Codes at cl 5.2.5P5. However, it is also clear that by positioning the driveway/crossover some 2.35 metres away from the southern site boundary as proposed, and replacing a 1.8 metre high solid brick wall with a lower visually permeable picket fence, that visibility and sightlines would be improved for the driver of a reversing vehicle.
The matter of onsite landscaping and street trees
In the respondent's written submissions of 25 October 2013, it is advised at paragraph 15(c):
The presence of vehicle parking within the front setback area of the subject site would reduce space available for high quality landscaping (garden beds), which would improve the appearance of the streetscape.
And, at paragraph 15(d):
Crossovers adjacent to street trees have the ability to impact on the [root] system and health of these trees. As there are two street trees adjacent to the proposed crossover, the health of these trees could be compromised which could ultimately lead to a reduction in the quality of the landscaping on the verge.
In the applicant's undated response to the respondent's written submissions it is advised:
(a)It is planned to add landscaping (flowering trees, grass and native plants) which would be visible through the picket fence.
(b)At the mediation, a representative from the Parks and Gardens Department advised that it was not opposed to driving between the two street trees.
In the view of the Tribunal, not a great deal of weight can be placed on the matter of onsite landscaping because of the narrowness of the site and the fact that it would be counterbalanced by an onsite vehicle. However, it does appear that the provision of a driveway/crossover would not adversely affect the two existing street trees.
The matter of streetscape
In the respondent's written submissions of 25 October 2013, it is advised that:
(a)Within the entire streetscape, 34 of the 63 lots (53%) have crossovers and parking in front of dwellings. Part 7 of the 'current' PP 3.7 seeks to ensure that parking is compatible with the established neighbourhood character, which is defined as the dominant visual characteristic of the 'surrounding area' (namely, the five dwellings either side of the subject site and equivalent opposite). As such, the proposed access location and parking is not consistent with the dominant characteristics of the established neighbourhood character, as only 47% of the properties have parking and crossovers to the frontage.
(b)The front setbacks in the 'surrounding area' are generally free from development that could obscure views to dwellings from the street. The presence of a vehicle within the proposed location would obstruct the view of an original dwelling listed on the Local Government Inventory and would reduce the visual amenity and character of the street.
In the applicant's undated response to the respondent's written submissions, it is advised:
(a)The street is over half full of houses (55%) with driveways to the front of their properties, and the figure is 50% in the 'surrounding area'.
(b)The applicant's proposal would improve the streetscape by bringing down a wall and replacing it with a picket fence in keeping with the heritage of the house and the street. It would show off the home that is currently blocked by the applicant's car and wall.
In the view of the Tribunal, with such a large proportion of the properties with driveways, the question that needs to be asked is 'has the horse bolted?'
This question was addressed in Tooth and City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198, where the Tribunal observed at [47] and [48]:
Next, it is convenient to note here that the Tribunal does accept in principle Mr Tooth's argument that "the horse has bolted" is available in planning law and practice. Thus it was so decided in Robertson and Macedon Ranges SC [2004] VCAT 1948 (29 September 2004) at [27]; Craig v Port Philip City Council (1997/11378), a decision of the Administrative Appeals Tribunal of Victoria Planning Division and in A &S Valente & Associates Pty Ltd v Monash CC [2004] VCAT 1568 at [9]. Finally, there is Laslett v District Council of Mt Gambier (1984) 54 LGRA 415, where the findings of the South Australian Planning Tribunal referred to that concept. On appeal, that reference went unremarked on by the Supreme Court of South Australia.
However, this Tribunal does prefer the general approach of the Victorian Civil and Administrative Tribunal in Wheeler v Greater Geelong CC [2005] VCAT 1035 where it was said (at [15], emphasis added):
'Although I appreciate the point made [by counsel] that a proposal for a two storey [sic] detached dwelling may not trigger any planning permit thereby limiting the extent to which these objectives and the preferred character can be achieved, I prefer the other side of that argument being that there is still an opportunity to achieve what the Scheme is advocating – this is not a situation where the 'horse has bolted' so that the outcomes cannot be attained.'
A further question to be answered in this case is 'whether in Yilgarn Street the opportunity still exists to achieve the objectives and design principles of TPS 4 and the 'current' PP 3.7.
Unfortunately, there is no information available to the Tribunal as to when, and under what circumstances, other driveways/crossovers were built, and over what period of time. Were, for instance, some of these driveways/crossovers approved by Council under recent planning controls?
Of relevance is the discussion in Trickey and City of Subiaco [2005] WASAT 256 (Trickey). The proposal was for a single carport located within the primary setback area. At [37], it was advised that:
The right-of-way at the rear of the subject lot was paved and well utilised by other lots within the street block. A considerable number of dwellings on both sides of the right-of-way had carports/garage structures accessing off the right-of-way. The view also confirmed that additional car parking could be accommodated at the rear of the subject land.
The decision of the Tribunal was to dismiss the application for review.
In Trickey, the right of way was 3.5 metres wide, and an 'ancillary accommodation' building, located at the rear of the property, was 1.8 metres from the right of way.
However, in this case, the right of way is only 3 metres wide and, with the outbuilding (laundry) located on the rear boundary, manoeuvrability of a vehicle would be more difficult. Also, the situation here is different, with only four or five properties out of 28 on the west side of Yilgarn Street between Aberdare Road and Onslow Road having rear parking access from the right of way, as explained in [17(e)] above.
Again, the proposal here is not for a carport or garage structure located within the front setback area, but for an open car parking space accessed via a driveway/crossover which, together with a permeable picket fence, will open up views of a residence listed on the City's Municipal Heritage Inventory.
As a consequence, the overall effect will be an improvement to the existing streetscape by way of the 1.8 metre wall being demolished and a single street parking space removed.
Conclusion
The Tribunal accepts that the overall streetscape objective of the R Codes, TPS 4 and the 'current' PP 3.7 in established areas like Shenton Park is to try to preserve the character of the streetscape and to position the car parking areas and built structures (carports and garages) away from the front setback area where a right of way exists. However, the R Codes do provide scope for planning policies to augment its provisions in order to guide judgments about the merits of a proposal that does not meet the requirements of the R Codes.
In this case, the respondent included within its 'rescinded' PP 3.7 a 'hierarchy of preferences' in relation to vehicular parking, with parking in front of a dwelling as the least acceptable location. The term 'car parking areas' was given prominence within the text.
However, under the 'current' PP 3.7, there is no longer a 'hierarchy of preferences', and limited reference to 'car parking areas'. This shift in emphasis, either intentional or unintentional, appears to downgrade the importance of 'car parking areas', as opposed to carports and garages, when determining development applications within the front setback area.
In this case, the width of the right of way is important as an alternative means of vehicular access. It is only 3 metres wide, and although there is little doubt that a small to medium sized vehicle could be manoeuvred with some difficulty around the existing outbuilding (laundry) on a 10 metre wide lot into a car parking space, it would come at a considerable cost to the existing onsite amenity enjoyed by the applicant and her family at the rear of the property.
Regarding the number of lots in Yilgarn Street with right of way access between Aberdare Road and Onslow Road, more than 50% have a driveway/crossover and in the 'surrounding area' of 21 properties, the figure is almost 50%. If the percentage of residences with a driveway/crossover in Yilgarn Street was, say, 5% to 10%, or even 25%, then a stronger argument could be made to oppose the current proposal. In the view of the Tribunal, the 'horse has bolted' in Yilgarn Street with respect to the subject site.
Again, in the view of the Tribunal, an approval for a front car parking space with associated driveway/crossover on the subject site would now be appropriate, as it would be compatible with the dominant visual characteristic of vehicle access within the Yilgarn Street streetscape.
What can be achieved by an approval in this case is the opening up of the streetscape by the removal of a 1.8 metre high wall to allow a driveway/crossover to gain access to an open car parking space and the construction of an already approved lower permeable picket fence.
This, together with the removal of a single on street parking space, will have the effect of opening up views of a residence listed on the City's Municipal Heritage Inventory. Although not ideal, matters of sightlines for a reversing vehicle, and onsite landscaping, can be addressed with conditions. Existing street trees will be retained.
Having regard to the above reasons, the Tribunal determines that the proposed unroofed car parking space (car bay) with associated driveway/crossover be allowed.
Order
The Tribunal makes the following order:
1.The application for review is allowed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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