| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : POSCH and CITY OF GOSNELLS [2013] WASAT 179 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 26 SEPTEMBER 2013 DELIVERED : 7 NOVEMBER 2013 FILE NO/S : DR 145 of 2013 BETWEEN : HELMUT POSCH JOLANTA POSCH
Applicants
AND
CITY OF GOSNELLS
Respondent
Catchwords: Town planning Development R Codes Deemed to comply requirements Design principles Street setback area Open space Setback from front and side boundaries Steel and Colorbond carport Undesirable precedent Modifications to existing garage space Subject site already overdeveloped Existing carports in front setback area elsewhere not justification for proposed carport Legislation: City of Gosnells Town Planning Scheme No 6
(Page 2)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(2)
Residential Design Codes of Western Australia (2013), cl 5.1.2, cl 5.1.4, cl 5.2.1, Pt 5, Appendix 1
State Administrative Tribunal Act 2004 (WA), s 31 Result: Application for review dismissed
Summary of Tribunal's decision: The application for review was lodged against a decision of the City of Gosnells to refuse the development of a double carport within the street setback area at No 26 (Lot 785) Dellar Road, Maddington.
In undertaking this review, the Tribunal had the benefit of an on site view of the subject site, and the surrounding locality, just prior to the conduct of the formal hearing.
In its assessment, the Tribunal considered the position of the parties; predominantly with respect to street setback, open space, streetscape and the aesthetics of the proposed structure. Additional matters, such as the relevance of other carports constructed within the front setback area in the City of Gosnells, and the effect of modifications to the existing onsite garage space, were also considered, as was the matter of undesirable precedent.
The Tribunal found that the proposed development did not satisfy the Deemedtocomply requirements or the Design principles of the Residential Design Codes of Western Australia (2013) with respect to building setback, open space and streetscape, and that an approval would further increase building bulk on a site that is already overdeveloped.
The Tribunal also found that the presence of existing carports built within the street setback area in the City of Gosnells, some of which were unapproved, could not be used as justification for the proposed carport.
It was also the view of the Tribunal that the existing garage space could be modified internally to accommodate two small to medium sized vehicles, and that an approval in this case would create an undesirable precedent for other similar applications in like circumstances.
The application for review was dismissed.
(Page 3)
Category: B
Representation: Counsel:
Applicants : In person
Respondent : Mr T Price (Acting as Agent)
Solicitors:
Applicants : In person
Respondent : City of Gosnells
Case(s) referred to in decision(s):
Goldin & Anor v Minister for Transport (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Smart and Byrne v Barossa Council [1999] SA ERDC 29
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This matter involves an application dated 22 April 2013, by Mr Helmut Posch and Mrs Jolanta Posch (applicants), pursuant to s 252(2) of the Planning and Development Act 2005 (WA) for review of a refusal by the City of Gosnells (Council, City or respondent) to grant planning approval for a carport within the front setback area at No 26 (Lot 785) Dellar Road, Maddington (subject site). 2 The respondent's reasons for refusal on 20 March 2013 were: 3 Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) the Tribunal, following an onsite mediation between the parties, invited Council to reconsider its decision. 4 At the Council meeting on 25 June 2013, the application for planning approval was again refused, but for modified reasons, as follows: 5 Just prior to the formal hearing of the Tribunal on 26 September 2013, an onsite viewing took place between the parties. Senior Sessional Member Graham was in attendance.
Subject site 6 The subject site is No 26 (Lot 785) Dellar Road, Maddington. It is all that land comprised in Certificate of Title Volume 2081, Folio 878 (on deposited plan 21554). It has an area of 590m². 7 The subject site currently contains a single brick and tile dwelling with associated extensions (comprising some 319.1m² in total). (Page 5)
It includes a single garage located under the main roof of the dwelling, with a roofed extension on the same building line as the dwelling, that can be used as a second garage. 8 Access to the subject site is provided via a 6 metre wide driveway and crossover. The front setback area is paved and there is little or no 'soft' landscaping on the property; particularly when compared to the adjoining residences to the east and west. The existing front fence is visually permeable.
Proposed development 9 The application for planning approval proposed: 1) the construction of a 6 metre wide by 6 metre long (36m²) gabled carport to be located over the existing driveway in the southeastern corner of the subject site. The structure would be adjacent to the existing garage and roofed extension described in [7] above; 2) a nil setback to the front boundary and a 0.5 metre setback to the southeastern side boundary; 3) the four supporting columns would be 2.4 metres high with the overall structure having a height of 3.4 metres; and 4) the carport would be constructed of cream Colorbond steel. 10 In response to a question from Senior Sessional Member Graham at the hearing, the applicants advised that they would be happy to set the proposed carport back 1 metre from the front and side boundaries, if required.
Planning framework 11 The subject site is zoned Urban in the Metropolitan Region Scheme and zoned Residential under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme). It has a density coding of R17.5. 12 Of relevance to this matter are the following planning instruments: a) State Planning Policy 3.1 Residential Design Codes (2013)(R Codes); (Page 6)
13 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 for consideration under this review.
Respondent's position 14 The position of the respondent is outlined in its statement of issues, facts and contentions (SIFC) dated 23 July 2013. In summary, the respondent contends: a) The existing built form development in proximity to the subject site is predominantly low density, single residential dwellings. Building setbacks are generally between 5 metres and 7 metres, which is consistent with the existing R17.5 coding which requires a 6 metre setback. b) The R Codes and LPP 1.1.1 permit carports to be built in the front setback area. However, the minimum setback generally applies under the so called 'averaging rules', but there is no possibility of 'averaging' given the existing built form on the subject site. c) The setbacks from a primary street boundary are a key element impacting on the perception of streetscapes by the wider community, and maintaining or enhancing streetscapes is an important aspect of the assessment of development proposals. This is reflected in the emphasis placed on streetscapes in the wording of the Design principles of the R Codes relating to general building setbacks. d) The extent of open space on a site may also affect perceptions of streetscape as it directly relates to building bulk, and the visual impact of the built form. In the subject application the degree of open space proposed is less than that required under the R Codes or LPP 1.1.1. (Page 7)
The requirements aim to ensure sufficient open space to allow for attractive streetscapes. e) The existing streetscape in Dellar Road is open and expansive, with long views to the Darling escarpment. This reflects a relatively wide street reservation (20 metres) with a linear alignment (for example, no bends/curves), existing development setbacks of between 5 metres to 7 metres, and a predominantly brick/masonry form of development construction. There are no buildings or structures on other sites in the vicinity of the subject site, located with a zero street or side boundary setback. f) Relaxation of the street setback requirements may be considered on merit under the R Codes and LPP 1.1.1. Both these documents reference the need for development to either contribute to a desired streetscape outcome, or at least, not detract from the existing streetscape. The respondent believes the following constitutes a desired streetscape: i) the consistency of building setbacks; ii) the consistency of building architectural form and materials on a site, especially in relation to the main component of an overall site (for example, the dwelling); iii) the amount of bulk created by buildings is consistent throughout a streetscape; and iv) one which is consistent with the community's expectations. g) Given the above, the proposed carport will have a detrimental and unacceptable impact on the existing streetscape because: i) the setback of the carport is not consistent with other setbacks in the existing streetscape. The carport will project into the established street setback area and, as a consequence, will be readily visible from the public realm; (Page 8)
ii) the proposed carport is not constructed of materials which match, or are complementary to, the dwelling on the subject site. The existing dwelling is constructed of brick and tile and the proposed carport has steel posts and roof. The respondent believes that steel framed and clad structures are of a lesser aesthetic appearance than a brick or masonry structure. It is considered that the construction materials, in combination with the proposed setback, would detract from the streetscape; iii) the extent of the proposed carport's projection into the front setback area would be visually intrusive and would detract from a streetscape which is characterised by an open spacious aspect and long views; iv) the intended site cover exceeds that permitted under the R Codes or LPP 1.1.1. Given the location of the carport in public view, in front of the dwelling, it is considered that this constitutes excessive bulk; and v) any approval for the proposed carport would represent an undesirable precedent for other potential similar applications, the cumulative impact of which would be to undermine streetscapes in residential areas.
The applicants' position 15 The position of the applicants is briefly outlined in their SIFC dated 6 August 2013. In summary, the applicants contend: (Page 9)
d) The applicants strongly disagree that the proposed steel carport does not match the streetscape or the dwelling on the site. On the contrary, a steel and Colorbond structure is often used to finish off brick and tile constructions to add more charm. e) Not giving an approval for the proposed carport, because it would result in a number of similar applications, is 'rude', considering how much damage is suffered because of not having a carport. 16 Other points made by the applicants in their submissions include: a) The proposed development will not negatively impact on the streetscape. b) The proposed development complies with LPP 1.1.1. c) Council's reasons for refusal on 20 March 2013 are wrong and inconsistent. d) The existing garage cannot be considered as a garage because the cars cannot fit. The proposal does, therefore, not multiply the onsite garage space.
Planning issues 17 The principal planning issues are: 1) Whether the development meets the provisions of the R Codes; specifically relating to the setback of buildings generally, and open space, and the related standards in LPP 1.1.1. 2) Whether the proposed development will negatively impact on streetscape amenity by virtue of its proposed location and built form. 3) Whether the extent of open space proposed on the subject site and, by implication, the proposed extent of built form site cover, complies with the specified R Codes and policy standards. (Page 10)
4) Whether the proposal represents an adverse precedent which could have a negative impact on streetscapes within the district.
Assessment of the proposals
Legislative and policy provisions
State Planning Policy 3.1 Residential Design Codes of Western Australia (2013) 18 The provisions of the R Codes most relevant to this matter under Pt 5 Design elements for all single house(s) and grouped dwellings and multiple dwellings in areas coded less than R30 include: 5.1 Context Objectives (a) To ensure that residential development meets community expectations in regard to appearance, use and density. … 5.1.2 Street setback Design principles P2.1 Buildings set back from street boundaries an appropriate distance to ensure they: P2.2 Buildings mass and form that: Deemedtocomply C2.1 Buildings set back from the primary street boundary: i. in accordance with Table 1; (Page 11)
ii. corresponding to the average of the setback of existing dwellings on each adjacent property fronting the same street; iii. reduced by up to 50 per cent 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 open space between the setback line drawn parallel to it at twice the setback distance …; … 5.1.4 Open Space Design principles P4 Development incorporates suitable open space for its context to: Deemedtocomply C4 Open space provided in accordance with Table 1 … . 5.2.1 Setback of garages and carports Design principles P 1 The setting back of carports and garages to maintain clear sight lines along the street and not to detract from the streetscape or appearance of dwellings; or obstruct views of dwellings from the street and vice versa. Deemedtocomply C1.2 Carports set back from the primary street in accordance with clause 5.1.2 C2.1. Appendix 1 Definitions Carport A roofed structure designed to accommodate one or more motor vehicles unenclosed except to the extent that it abuts a dwelling or a property (Page 12)
boundary on one side, and being without a door unless that door is visually permeable.
City of Gosnells Town Planning Scheme No 6 19 The Scheme provisions most relevant to this matter include the following: 4.2 OBJECTIVES OF THE ZONES The objectives of the zones are: • Residential Zone To provide for residential development at a range of densities with a variety of housing to meet the needs of different housing types through the application of the Residential Design Codes (2002). … 5.2 RESIDENTIAL DESIGN CODES (2002) City of Gosnells Local Planning Policy 1.1.1 (2009) 20 The policy provisions most relevant to this matter include the following: Part 6 - Element 4 Open space requirements Objective - To ensure that private and communal open space is set aside and landscaped to provide for attractive streetscapes, attractive settings to complement buildings, privacy, direct sun, and the recreational needs of residents. Standards for Performance Criteria to be met Open space provided around a building on a lot zoned Residential R5 to R17.5 that: i) Is at least 90% of the area required by Table 1 of the RCodes; … (Page 13)
iii) Positively contributes to an attractive streetscape. …
The matter of street setback 21 The matter of street setback is advised by Pt 5 of the R Codes under both the Deemedtocomply requirements and the Design principles. 22 In the former (cl 5.1.2 C2.1(i) of the R Codes), buildings are to be set back from the primary street in accordance with Table 1, which requires a 6 metre setback. 23 With a proposed zero setback for the carport (or even a 1 metre setback as suggested by the applicants at the hearing), the proposed development would clearly not comply. 24 However, the R Codes do provide some flexibility here (cl 5.2.1 C2.1(ii)) where the setback can correspond to the 'average' of the setback of existing dwellings on each adjacent property fronting the same street. 25 In her witness statement, Ms Lidija Langford, Senior Planner Planning Implementation at the City, advised at paragraph 7 of her statement: … The minimum primary street setbacks of existing dwellings on each side of the property are approximately 7.5m for Lot 786 and 5.2m for Lot 784. … 26 With the 'average' setback between these two properties at 6.35 metres, the applicants cannot be advantaged by this provision. 27 Again (under cl 5.1.2 C2.1(iii) of the R Codes), the minimum setback can be reduced by up to 50% (or 3 metres in this case) provided that the area of any building, including a carport or garage, which intrudes forward of the 6 metre setback line, is compensated for by at least an equal area of open space within 6 metres behind the 6 metre back line. 28 As explained by Mr Tim Price, appearing for the respondent at the hearing: In other words, three metres would be the minimum setback. But but in theory, only if there's a compensating area behind the 6 metre setback line, which there isn't. (T:9; 26.09.13) (Page 14)
29 In the view of the Tribunal, the applicants have no manoeuvrability to argue their case within the Deemedtocomply requirements of the R Codes on building setback. 30 An analysis of street setback under the more flexible Design principles (cl 5.1.2 P2.1 and P2.2 of the R Codes) indicates that buildings should be set back from street boundaries at an appropriate distance, to ensure that they are consistent with an established streetscape, and that the building's mass and form positively contributes to the prevailing development context and streetscape. 31 To advance her argument against the proposed carport, Ms Langford has recourse to the Explanatory Guidelines (Guidelines) in the R Codes which distinguish between 'open' and 'contained' streetscapes; the latter frequently being in established suburbs which were built without provision for vehicles. The Guidelines state, on page 40, that: 32 Ms Langford concludes in her witness statement, at paragraph 15, on this point that: … Dellar Road fits into the definition of an open streetscape, in that buildings are setback a consistent distance from the street with the front setback area being spacious, free of structures and 'softened' through greenery. 33 In her witness statement dated 27 August 2013, at paragraph 9, Ms Gordana NesicSimic, Urban Designer Urban Regeneration at the City, argues: Dellar Road is predominantly characterised by single residential dwellings with relatively consistent street setbacks and landscaped front yards. Buildings and other structures such as car ports do not occur within the street setbacks of this particular street. The introduction of a carport within the front setback would break this streetscape pattern, present as adhoc development and is likely to detrimentally affect streetscape amenity. 34 In their submissions on this matter, the applicants argue that the proposed development will not negatively impact on the streetscape, and that there are numerous examples (supported by photographic evidence) of steel Colorbond carports built within the front setback area in the City. (Page 15)
35 In the view of the Tribunal, the arguments of the respondent are more compelling than those of the applicants on the Design principles for street setback .
The matter of open space and streetscape 36 The matter of open space and streetscape is advised by Pt 5 of the R Codes under both the Deemedtocomply requirements and the Design principles. 37 In the former (cl 5.1.4 C4 of the R Codes), open space is to be provided in accordance with Table 1, which requires a minimum 50% of the site area to be set aside as open space in a residential area coded R17.5. 38 In her witness statement, Ms Langford explains at paragraph 19: Based on the application plans and approximate measuring using the Council's mapping system, I have determined that the amount of floorspace used for the purposes of calculating open space is approximately 319.14m². … The site is 590m² in area and therefore 50 per cent of that area, being 295m², is required to be open space. The proposed carport will be 36m² in area and therefore the site will overall have 355.14m² of site cover, representing 39.81% open space. 39 Clearly from these figures, the 50% of site area required for open space cannot be achieved but LPP 1.1.1, as explained in [20] above, does allow the 50% requirement to be reduced to 45% (90% of 50%). However, the 39.81% open space is still well short of the 45% requirement. 40 An analysis of open space under the more flexible Design principles (cl 5.1.4 P4 of the R Codes) stipulates that a development should incorporate suitable open space to reflect the existing and/or desired streetscape character, and provide an attractive setting for the buildings, landscape, vegetation and streetscape. 41 The point to be made here is that the construction of the carport, as proposed, actually reduces the percentage of open space at the front of the subject site. As explained by Mr Price at the hearing: … And the carport, by the way, doesn't count - the land underneath the carport, does not count as open space. (T:9; 26.09.13) 42 The position of the applicants, as explained by Mr Posch at the hearing, was: (Page 16)
43 In the view of the Tribunal, an assessment of a development under the Design principles opens up for consideration the merits of the proposal, and this assessment becomes largely subjective. 44 However, although the applicants may have a genuine wish to contribute positively to the streetscape, it is difficult to reach a conclusion, from an open space and streetscape perspective, that their proposed carport would in fact be sympathetic to the existing open and uncluttered Dellar Road streetscape, either now, or into the future.
The matter of construction materials 45 Some attention was given by the parties to the question of the construction materials of the proposed carport. 46 The position of the applicants was that steel and Colorbond construction is often used to finish off brick and tile constructions and would add more charm to the streetscape. 47 The position of the respondent was outlined by Ms Langford and Ms NesicSemic at the hearing. Ms Langford advised: … it's primarily a brick and tile house and this is a Colorbond structure and something that's right in your face on the front boundary, you would think it should match the existing house … . (T:23; 26.09.13) 48 Ms NesicSemic advised: Well, first of all it's not an unattractive carport, so what I say has got nothing to do with whether I think it's attractive or not. For me it's all about fit, so how does that new proposed structure fit in with the other structures on the site? (T:33; 26.09.13) 49 In the view of the Tribunal, the matter of the steel and Colorbond construction of the carport, and its relationship to the existing brick and tile home, is not a determinative issue. Little weight will be given to this in deciding the matter. (Page 17)
The matter of the existing garage space 50 At [7] above, it is explained that the existing single garage (garage 1) under the main roof structure of the house, has been added to by a roofed extension (garage 2). The effect of this extension is to provide a double garage. 51 The position of the applicants at [15] above is that the existing garage (garages 1 and 2) are too small and not fit for purpose. 52 At the hearing Ms Langford explained: I do acknowledge that the the existing garage attached to the house, … is constrained. It's not quite as big as the Australian Standards prescribe. But one of the problems there is that roller I mean, it it can work for a small car and it could work for a larger car but the roller door, unfortunately, forces the position of a car forward and, unfortunately, that conflicts with a pillar. (T:11; 26.09.13) 53 From a report to Council at its Ordinary Meeting of 25 June 2013, a floor plan was prepared following an officer's onsite visit on 15 May 2013, and it shows that garage 1 has a width of 2.7 metres (approximately) and garage 2, a width of 3.3 metres (approximately). However, existing shelving (600 millimetres wide) and a protruding air conditioning unit in garage 1 reduces the effective width to 2.1 metres (approximately), whilst 600 millimetre wide shelving in garage 2 reduces its effective width to 2.7 metres. A downpipe and drain head at floor level also provide obstructions in garage 2. 54 From observations at the onsite view, it was clear to the Tribunal that if internal modifications were made to garage 1, to remove the shelving and reposition the air conditioning unit, and modifications made to garage 2, to remove the shelving and reposition the downpipe and drain head, that both garages could be used for small to medium sized vehicles. 55 Even under current constraints, a question from Senior Sessional Member Graham to Mr Posch as to whether two smaller vehicles could fit into the existing garage, he responded 'Yes, by all means, yes'. (T:41; 29.09.13) 56 In the view of the Tribunal, it would be possible, by way of internal modifications to garages 1 and 2, to accommodate two small to medium sized vehicles, even if only the doors on the driver's side of the vehicles could be opened within both garages. (Page 18)
The matter of existing carports within front setbacks 57 In the applicants' further arguments of 21 May 2013, a number of photographs were submitted showing properties in Maddington and elsewhere in the City with carports constructed in the front setback area. 58 In the respondent's position in relation to this evidence, dated 27 August 2013, it is clear that a number of the structures have not been approved, and would not comply with the R Codes. Other examples either comply with the R Codes because of a higher R35 coding under TPS 6, or an approval was not required under the R Codes because of a 'General Rural' zoning. One example complied because it met the 'average' setback requirements explained at [18] above. 59 In the view of the Tribunal, although the applicants were entitled to provide the photographic evidence, it is the matter before the Tribunal regarding the subject site that must be considered and determined on its merits. The illegal structures constructed elsewhere may well be the subject of compliance action by the City. 60 Of relevance here is the view of the Court observed in Smart and Byrne v Barossa Council [1999] SAERDC 29 at [9]: … Trite as it may be to say so, 'two wrongs do not make a right', or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions.
The matter of undesirable precedent 61 In Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [74] the Tribunal adopted the following criteria from Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment. These are: 62 The position of the applicants is summarised at [15] above, but does not in itself argue that an approval in this case would establish a precedent. (Page 19)
63 The position of the respondent is best summarised in its SIFC of 23 July 2013 at paragraph 3.6.5: Any approval for the proposed carport would represent an undesirable precedent for other potential, similar applications, the cumulative impact of which would undermine streetscapes in residential areas. 64 Again, the views of Ms NesicSimic in her witness statement of 27 August 2013 are relevant here at paragraph 11A: In built form terms, it is important that the streetscape characteristics of each wave of development are coherent. A carport within the street setback would be inconsistent and present as adhoc development that detrimentally impacts upon the area's imagery and sense of integration. 65 In the view of the Tribunal, although the appearance of the proposed carport is open for debate in terms of its aesthetic appeal, its size and positioning within the front setback area would not be unobjectionable in the terms of the R Codes and LPP 1.1.1; particularly in the context of an existing open streetscape that is free from built form within the front setback area of Dellar Road properties. Again, the Tribunal has no doubt that an approval in this case would establish more than a mere chance of later undistinguishable applications elsewhere in the City.
Conclusion 66 The Tribunal concludes that the proposed development: i) would not satisfy the prescriptive Deemedtocomply requirements of the R Codes with respect to both street setback and open space; ii) would not satisfy the Design principles of the R Codes with respect to both street setback and open space, particularly having regard to the existing streetscape; iii) would further increase building bulk on a site that is already overdeveloped with respect to the open space requirements of the R Codes and the local planning framework; iv) that the existence of carports elsewhere in the City within the street setback area is not justification for the proposed carport; (Page 20)
67 Having regard to the above, the Tribunal determines that the proposed carport within the front setback area be not allowed.
Order |