Purser and Anor and Town of Claremont
[2005] WASAT 43
•4 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: PURSER & ANOR and TOWN OF CLAREMONT [2005] WASAT 43
MEMBER: MS B MOHARICH (MEMBER)
HEARD: 18 MARCH 2005
DELIVERED : 4 APRIL 2005
FILE NO/S: RD 261 of 2004
BETWEEN: KEVIN PURSER
GENEVIEVE PURSER
ApplicantAND
TOWN OF CLAREMONT
Respondent
Catchwords:
Town planning - Garage - Width of lot - Whether discretion exists to approve - Election for legal representation
Legislation:
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Town Planning and Development Act 1928 (WA) s 38(4), s 38(3)(a)(ii), s 40(3), s 58(3)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr R Hope-Johnstone
Respondent: Mr P Wittkuhn
Solicitors:
Applicant:
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS B MOHARICH (MEMBER)
REASONS FOR DECISION
This review is brought from the refusal of the council of the respondent to approve an application for two dwellings on land at 21 (lot 5107) Second Avenue, in Claremont.
Preliminary Issue
At the commencement of the hearing of this matter, the applicant raised as an issue whether the respondent could be legally represented. This was on the basis that the applicant had elected on its Notice of Appeal that neither party be legally represented. The right to elect that neither party be legally represented is set out in s 58(3) of the Town Planning and Development Act 1928 (WA) ("Planning Act"), and must be invoked "at the time the appeal is commenced". The appeal was lodged on 3 November 2004, with the Town Planning Appeal Tribunal. The Town Planning Appeal Tribunal was abolished by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) ("Conferral Act"), which commenced on 1 January 2005. The jurisdiction of the Town Planning Appeal Tribunal has been subsumed by the State Administrative Tribunal.
At the time the appeal was lodged, the right existed for the appellant in an appeal referred to in s 40(3) of the Planning Act to make an election that neither party be legally represented. This right still exists pursuant to s 58(3) and 38(4) of the Planning Act as amended by the Conferral Act. Section 40(3) of the Planning Act (now s 38(4)) sets out those matters for which an election in s 58(3) can be made. These include, relevantly:
"(a)(ii)the determination of, or conditions imposed in respect of, a planning application to commence development of a single house on a single lot of a value that is less than $500 000 or such other amount as is prescribed by the regulations, or any development ancillary to that development.
(b)where the appellant has elected at the time of commencing the appeal to have the appeal determined by a single ordinary member, and the other parties to the appeal have agreed with that election."
The value of the development listed on the Notice of Appeal is $508,000 and is therefore above the monetary threshold provided for in s 38(3)(a)(ii). And in any event, the appeal does not relate to a "single house on a single lot". At the time the appeal was lodged, it related to a grouped dwelling on a single lot, and would not therefore be covered by this provision.
For the appellant to rely upon the exception listed in s 38(3)(b), there is a requirement for the all parties to agree for the matter to be determined by a single ordinary member in order that the appellant may invoke the election made in s 58(3). As this has not occurred, the right to elect that neither party be legally represented cannot be invoked.
For these reasons, the applicant's application to enforce the election is dismissed.
Background
The proposal was lodged with the respondent on 5 May 2004, as an application for two, two storey grouped dwellings on a single lot.
However, between the date of lodgement of the application and the lodgement of the appeal, conditional subdivision approval of lot 5107 was given by the Western Australian Planning Commission ("Commission") by letter dated 27 September 2004. The Commission's approval allows the subdivision of the land into two side‑by‑side lots, each with a frontage of just over nine metres.
The dwellings on each of the lots are two storeys high, each with a six metre wide, enclosed garage setback 6.63 metres from the front boundary. A parapet wall is proposed on the outer wall of each garage. The garages are approximately 66 per cent of the width of each lot.
The application was the subject of a favourable recommendation by the planning officers of the respondent. However, the council of the respondent refused the application for the following reason:
"Council does not wish to exercise its discretion in regard to the width of the garage in terms of clause 36 of the TPS3; and in relation to parapet walls under the R Codes."
Power to approve
Mr Wittkuhn submitted that the reason for refusal did not correctly reflect the proper legal basis for the refusal of the development. It was his submission that the Town of Claremont Town Planning Scheme No.3 ("TPS3") did not provide the respondent, and therefore the Tribunal, discretion to approve a garage of this width.
Clause 36 of TPS3 deals with garages, carports, outbuildings and pergolas. It is useful to set out the relevant sub clauses which relate to garages:
"(3)In considering an application for a garage, Council will have regard to the following:
(d)Notwithstanding Subclause (3)(c), on lots with a width of less than 12 metres, a double garage will only be supported where it is located at or behind the front wall of the dwelling and is constructed so as to reduce the impact of the garage on the streetscape. This may include reduction of the finished floor level of the garage below the street level, the use of balconies or rooms projecting out above the garage or other innovation agreed to by Council.
(4)The maximum width of a garage and carport shall not exceed 50% and 60% respectively of the total length of the front boundary of the lot."
The respondent says that the discretion to allow double garages by way of cl 36(3)(d) is limited by cl 36(4) to garages with a width of 50 per cent or less of the front boundary of the lot.
The appellant argues that cl 36(3)(d) overrides cl 36(4), allowing double garages on lots with a width of less than 12 metres where the design of the double garage reduces the impact on the streetscape. Mr Hope‑Johnstone referred the Tribunal to a number of other examples of double garages along Second Avenue on lots of approximately the same dimensions as the proposed lots which will be created by the subdivision of lot 5107. In these examples, it was clear that the double garages exceeded the 50 per cent maximum stipulated in cl 36(4).
It appears to me that cl 36(3)(d) and cl 36(4) seek to control two different elements of design. Clause 36(3)(d) refers to the location of a double garage, while cl 36(4) seeks to control the dimensions of the garage. Neither clause is subject to the other, and therefore, compliance with both is required.
Power to vary
Mr Wittkuhn noted that TPS3 did not contain any general discretion to vary development standards imposed by TPS3, and therefore was of the view the proposal, in its current form, could not be approved.
The Tribunal agrees with this view. TPS3 does not contain a power to vary the clear and unequivocal development standard imposed in cl 36(4), and therefore the Tribunal must dismiss the appeal.
Planning Issues
This decision has been reached in accordance with the interpretation of TPS3.
It should be noted however, that but for cl 36(4), the Tribunal would have been minded to allow the appeal. I was not convinced by the respondent's argument regarding the benefits of battle‑axe subdivision as opposed to side‑by‑side subdivision, particularly in this case, where a large proportion of the street had been subdivided in a side‑by‑side form. The proposed dwellings were well suited to the existing development in the vicinity on Second Avenue.
I was not convinced that battle-axe development provided any better surveillance of the street, which seemed to be an issue of some significance to the respondent. This is no more obvious than the example provided by Mr Olson, the mayor of the Town of Claremont, who appeared for the respondent. Mr Olson's witness statement provided photographs of every house along Second Avenue. Of the newer housing stock (developed post subdivision), connectivity with the street and passive surveillance (and therefore the perception of safety) is in fact more evident in those two‑storey developments with balconies over their double garages. Battle‑axe blocks provide their own security issues, and impose extensive tracts of hard paving to provide vehicular access to rear lots, break the rhythm of the streetscape, and are therefore not a panacea to streetscape and security issues.
As Mr Hope‑Johnstone noted, and was evident from the photographs annexed to Mr Olson's witness statement, a number of dwellings have been approved with garages which account for more than 50 per cent of the width of the street frontage, on lots of less than 12 metres in width.
Comment cannot be made on the way in which these developments were approved, as this was not a matter that was before the Tribunal.
For the foregoing reasons, the Tribunal makes the following orders:
The appeal is dismissed.
I certify that this and the preceding six pages comprise the reasons for decision of the State Administrative Tribunal.
________________________
B MOHARICH
Member
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