Radford and City of Vincent
[2014] WASAT 67
•6 JUNE 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RADFORD and CITY OF VINCENT [2014] WASAT 67
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 29 MAY 2014
DELIVERED : 6 JUNE 2014
FILE NO/S: DR 360 of 2013
BETWEEN: BRUCE WILLIAM RADFORD
Applicant
AND
CITY OF VINCENT
Respondent
Catchwords:
Town planning Development application Refusal Proposed double garage accessed from primary street Existing car bays in front setback Application of policy Requirement to take access from right of way 'DeemedtoComply' provisions Design principles Adequately meet the needs of residents Impact on amenity and open space at rear of property Impact on streetscape Whether discretion should be exercised
Legislation:
City of Vincent Town Planning Scheme No 1, cl 19(2), cl 20(5), cl 38(5)
Residential Design Codes of Western Australia (2013), cl 5.1.2 C2.1, cl 5.1.4, cl 5.2, cl 5.2.1
State Administrative Tribunal Act 2004 (WA), s 31(1)
State Planning Policy 3.1 Residential Design Codes
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
In May 2013 Mr Bruce Radford lodged an application with the City of Vincent seeking approval for the construction of a carport within the front setback of the existing residence at No 15 Doris Street, North Perth.
This application was refused by the Council on the grounds that the proposed carport did not meet a number of provisions of the City of Vincent Residential Design Elements Policy (and the City of Vincent Town Planning Scheme No 1) and the applicant subsequently applied to the Tribunal seeking a review of that decision.
The substantive matter in dispute was the location of the carport structure in the front setback. The applicant argued the proposed carport met all the relevant requirements of both Council's policy and the Residential Design Codes of Western Australia (2013), while the respondent argued that a carport in the front setback would not fulfil the provisions of the policy (or the scheme) as it would detract from the established character of the streetscape.
The Tribunal found that the applicant's proposition of a 'need' to provide for the secure storage of three work vehicles on the lot, in addition to any vehicles required for private use, was not a reasonable expectation on a lot zoned for residential purposes under the Scheme. In addition, the proposed carport would add a further disruptive element to a reasonably consistent streetscape and would, in the Tribunal's view, not meet the relevant provisions of either the respondent's policy or the Residential Design Codes of Western Australia.
For those reasons the review was dismissed and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
Applicant: Mr JR Cocker
Respondent: Mr TJ Hockley
Solicitors:
Applicant: Contour Projects Pty Ltd
Respondent: Allerding & Associates
Case(s) referred to in decision(s):
Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter arose from a decision of the City of Vincent (respondent, City or Council) in which it refused to grant planning consent for the construction of a double carport and a front boundary fence at No 15 (Lot 2) Doris Street, North Perth (subject site). An application was subsequently made to the Tribunal by Mr Bruce Radford (applicant) for a review of this decision.
The original planning application was lodged with the respondent on 21 May 2013. The application was advertised by the respondent and no submissions were received.
On 5 September 2013 the respondent refused the application under delegated authority. Following the initiation of proceedings in the Tribunal and subsequent mediation the respondent was invited to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA).
At the ordinary meeting of Council held on 11 February 2014 the respondent refused the application for the following reasons:
1)The development is not considered consistent with the objectives and intentions of the City of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme) in that one of the overall goals of the Scheme is to ensure a high level of amenities in the locality.
2)The development is not consistent with the orderly and proper planning and preservation of the amenities of the locality.
3)Non-compliance with the City's 'policy SADC 14 On Site Car Parking' relating to the following:
(a)non-compliance with more than two car parking spaces per dwelling provision as there is the availability of public transport in the locality.
4)Non-compliance with the City's 'Policy SADC 8 Setbacks of Garages and Carports' relating to the following:
(a)non-compliance with 'more than 50% of the dwellings in the immediate street block on the same side of the street that the subject dwelling is located having carports or garages accessed from the primary street'.
Site and locality
The subject site, which is on the western side of Doris Street, has an area of 689.9 m2 with a frontage of 18.29 metres to Doris Street and a length of 37.72 metres. The site has access to a right of way to the rear of the property which provides vehicle access. The right of way is approximately 5 metres wide and sealed.
The site is somewhat atypical in the immediate vicinity as, with the exception of Lot 1 Doris Street, the adjoining lot to the immediate north, all the other lots on the western side of Doris Street are much narrower than the subject site.
The subject lot contains a substantial single storey residence set back approximately 8.5 metres from the Doris Street boundary. There is an existing crossover from Doris Street on the northern side of the lot. In the southwest corner of the lot is an existing double carport accessed from the right of way.
The rear of the property has the existing double carport in the southwest corner, a brick shed in the northwest corner linked by a pergola to the rear verandah of the residence along the northern boundary, and a garden area containing a mature tree between the two.
On the western side of Doris Street, between Elma Street and Selkirk Street, there are nineteen dwellings with frontage to Doris Street. Of these, five dwellings have carports or garages accessed from Doris Street.
Proposed development
The proposed development comprises the construction of a double carport on the southern side of the lot in the front setback, located 1 metre off both the Doris Street and southern boundaries, and a front boundary fence.
The carport, designed to match the residence, is supported on four brick piers and has a tiled roof with a pitch of approximately 30 degrees. The boundary wall is 1800 millimetres high, has brick piers with a masonry wall between them to a height of 600 millimetres, with open infill panels above.
Planning framework
The site is zoned 'Residential' with a density coding of R30 under the Scheme. Clause 19(2) of TPS 1 requires residential development to comply with the Residential Design Codes of Western Australia (2013) (Codes):
Unless otherwise provided in, or consistent with, the Scheme or a planning approval, 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.
However, cl 20(5) of TPS 1 provides discretion in regard to cl 19(2) in that the Council can consider variations to Codes where it considers that acceptable levels of residential amenity can be achieved.
Clause 38(5) of TPS 1 sets out various matters to be considered when determining an application for planning approval made under TPS 1. Matters to be considered include:
…
(b)any relevant planning policy;
…
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality[.]
The site is within the 'North Perth Precinct' pursuant to the City of Vincent Policy No 7.1.8 North Perth Precinct Scheme Map 8.
In relation to the residential area, clause 1 of this policy statement provides:
All residential development is to comply with the Policies relating to Residential Design Guidelines and Residential Development and Clause 20 of the City of Vincent Town Planning Scheme No. 1.
The City has adopted the City of Vincent Residential Design Elements Policy No 3.2.1 (Residential Design Policy). Clause 4.2 of the Residential Design Policy states that the policy '… endeavours to complement the R Codes, by augmenting and further developing specific provisions …'.
In the current context of the Residential Design Policy, the provisions established by clause 6.4.2(iv) include:
Setbacks of Garages and Carports
Garages and carports are not to visually dominate the site or the streetscape, and not to detract from the dominant elements of dwellings within the streetscape context.
Garages and carports are to be located behind the street setback line and at the side of the dwelling where space exists and accessed from an abutting right of way where a right of way exists.
…
Clause SPC 5(a) of the Residential Design Policy establishes the 'DeemedtoComply' requirement for street setbacks as follows:
The primary street setback is to reflect the predominant streetscape pattern for the immediate locality which is defined as being the average setback of the 5 adjoining properties on each side of the development.
However, clause SPC 8(b) of the Residential Design Policy states:
Notwithstanding the above, vehicular access to car parking, carports and garages for single houses may be from a street, regardless whether a right of way is available to the property, where:
…
(4)the applicant demonstrates there would be a major impact on the existing amenity or open space at the rear of the property by using the right of way.
The issues
The respondent set out its issues in this matter as follows:
1.Whether the location of the carport within the Doris Street setback meets the Design Solution provisions of the City of Vincent Policy No. 7.2.1 relating to Residential Design Elements?
2.Would approval of the application be consistent with the Design Principle of [clause] 5.2.1 of the Residential Design Codes relating to setback of garages and carports?
3.Whether approval of the new vehicular access meets the Design Principles of [clause] 5.3.5 of the Residential Design Codes relating to vehicle access.
4.Whether the proposal meets the aims and objectives of the Respondent's Policy No. 7.2.1?
The respondent accepted issues (1) and (4) but rejected issues (2) and (3) on the basis that the application for development approval was submitted prior to the promulgation of the current Codes (gazetted on 2 August 2013) and that the provisions of the previous version of the Codes should apply.
In Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported) the Tribunal held at [8]:
Insofar as it may be found that the Metropolitan Region Scheme of a local authority town planning scheme has given statutory force and effect to a particular principle, the (Town Planning Board) would be bound to apply it.
Essentially, this requires the Tribunal, in dealing with any review before it, to apply the planning provisions as they stand at the time of the review. In the present case this requires the application of the current Codes which on 2 August 2013, by notice in the Government Gazette, State Planning Policy 3.1 Residential Design Codes became operational, replacing the Residential Design Codes of Western Australia (2010).
In this context, while being cognisant of the general provisions of the Scheme, the Tribunal is required to assess the proposed carport against the relevant policy provisions of the Residential Design Policy and the provisions of cl 5.2 of the Codes.
The issues were clarified by the parties at the hearing. It was agreed that there was no issue with the relocation of the crossover from the northern side of the lot to the southern side of the lot, the provision of a hardstand area for the parking of two vehicles, or the provision of a new fence and gate. The only question in dispute on these matters was the width of the masonry piers of the proposed fence.
It was also agreed that the design of the proposed carport was sympathetic in terms of its relationship with the existing residence.
In this context, the substantive matter in dispute was the location of the carport structure in the front setback. The applicant argued that the proposed carport met all the relevant requirements of both Council policy and the Codes, while the respondent argued that a carport in the front setback would not fulfil the provisions of the Residential Design Policy (or the Scheme) as it would detract from the established character of the streetscape.
Tribunal's considerations
It was agreed that the Council, or the Tribunal in its shoes, has discretion to approve the carport, and that the issue before the Tribunal in this review was whether such discretion should be exercised.
In addressing this matter four substantive questions arise:
•Whether the need for the carport had been established.
•Whether it would be feasible and practicable to fulfil the 'Deemed-to-Comply' criterion of the Residential Design Policy by locating the carport at the rear of the property and taking access via the right of way.
•If not, whether the proposed carport met the exception established by SPC 8(b)(4) of the Residential Design Policy 'a major impact on the existing amenity or open space at the rear of the property by using the right of way'.
•Whether the proposal complied with the Objectives of the Residential Design Policy in regard to streetscape set out at clause 6.3 and SPC 5 of the Policy, and cl 5.2 of the Codes.
The Tribunal will consider each of these matters in turn.
The need for the proposed carport
The applicant argued that due to personal family needs to house four passenger vehicles they feel their needs were not given due and proper consideration by the respondent in applying a policy provision that is discretionary rather than mandatory.
The evidence provided to the Tribunal was that the applicant was a taxi driver and required parking for his taxi, two small charter vehicles and two private vehicles. In addition, there was an occasional need to cater for a further private vehicle.
It was argued that parking on a hardstand area within the front setback would not meet the applicant's requirements, in that vehicles at the property had previously suffered damage from hail storms and that, in addition, the dew on vehicles, particularly on winter mornings, meant they would require to be dried off prior to use.
The applicant submitted that '[d]ue to family needs to house 4 passenger vehicles' due and proper consideration needed to be given 'to adequately meet the needs of residents'.
The Residential Design Policy makes reference at SPC 14 'On-site Car Parking' … 'to adequately meet the needs of residents' and discourages 'the provision of more than 2 car parking spaces per dwelling … in locations where there is availability of public transport'.
In this context two questions arise in regard the submission of the applicant. First, SPC 14 deals solely with the provision of car parking on site, and the evidence was that the current arrangement can accommodate five vehicles on site. Secondly, it is questionable to suggest the provision to meet 'the needs of residents' should include a requirement to park three work vehicles on the site.
On this issue, the Tribunal concluded that as the provisions of SPC 14 of the Residential Design Policy specifically address 'parking spaces', and the subject site currently provides a double carport accessed off the right of way and a hardstand area access from Doris Street which provides car parking for a further three vehicles, this provision has no substantive bearing on the matter under review.
Locating a carport at the rear of the property
Clause SPC 8(i)(b) of the Residential Design Policy states that:
Notwithstanding the above, vehicular access to car parking, carports and garages for single houses may be from a street, regardless whether a right of way is available to the property, where:
…
(4)the applicant demonstrates there would be a major impact on the existing amenity or open space at the rear of the property by using the right of way.
In regard to the matter under review, the applicant relies on this provision and makes the following submission that:
•there is an existing small brick shed in the rear of the property;
•the remainder of the rear yard consists of an outdoor entertainment area and a small lawn area with a mature shade tree;
•there is a water bore located in the rear yard; and
•there is no lighting in the right of way and personal security is an issue for the occupants.
This submission concludes that it would be impractical to forgo the lawn, tree and part of the outdoor living space, to accommodate a new double carport.
The respondent contends that the use of the right of way for vehicular access to the existing garage would not result in a major impact on the existing amenity or open space at the rear of the property.
The viewing of the property established that it may be physically possible to locate a double carport in the northwest corner of the lot accessed off the right of way. This would, however, require both the demolition of the existing brick shed and the loss of the pergola (covered with shade cloth) adjacent to the northern boundary between the brick shed and the rear verandah of the existing residence. This would, however, provide for the retention of the water bore and could potentially include the retention of the existing tree.
The respondent argued that such a solution was likely to comply with the open space requirements of cl 5.1.4 of the Codes.
Clearly such a solution would impact on both the existing amenity and open space at the rear of the property, and the applicant argued that such impacts should be regarded as 'major' for the purposes of clause SPC 8(i)(b) of the Residential Design Policy.
However, even if that were in fact the case, it would not mean that the proposed carport would not require assessment against other relevant provisions of the Residential Design Policy.
Streetscape impacts
The objectives of the respondent's policy are set out in clause 6.3 of the Residential Design Policy and include the following:
•To ensure that new development is sensitive to the streetscape and established character of the locality;
•To promote development that reinforces the dominant streetscape rhythm …;
•To minimise the impact of vehicles on the amenity of the streetscape;
•To ensure that garages, carports and other developments within the front setback area do not detract from the dominant elements of the dwellings within the streetscape.
In regard to 'Street Setbacks', the 'DeemedtoComply' provisions of SPC 5 of the Residential Design Policy require:
(a)The primary street setback is to reflect the predominant streetscape pattern for the immediate locality which is defined as being the average setback of the 5 adjoining properties on each side of the development.
Of the 10 relevant properties, there are two single carports which appear to have been constructed some time ago and are set back from the front boundary at Nos 7 and 17 Doris Street. In addition, there are more substantial, and more recent, carports located closer to the street boundary at No 19 Doris Street (double carport) and No 23 Doris Street (single carport).
Thus the relevant average setback, depending on how it is calculated, is approximately 5 to 6 metres. The proposed development with a 1 metre setback does not comply with this provision.
This then requires that the proposed carport is assessed against the 'Design Solution' provisions of the Residential Design Policy where the relevant criterion is that development is to be appropriately located to maintain street character.
In addition, at cl 5.2.1 of the Codes 'Setbacks of garages and carports' require that carports are set back from the primary street in accordance with cl 5.1.2 C2.1 which requires a setback of 4 metres (as set out in Table 1) or 'corresponding to the average setback of existing dwellings on each adjacent property fronting the same street' (original emphasis).
As the proposed carport does not meet these requirements, it needs to be assessed against the relevant 'Design Principles' of the Codes. The critical criterion, which in general terms reflects the 'Design Solution' of the Residential Design Policy, is that:
P2.1Buildings set back from street boundaries an appropriate distance to ensure they:
• contribute to, and are consistent with, an established streetscape[.]
…
The western side of Doris Street contains 19 dwellings. Three of these properties (Nos 5, 17 and 29 Doris Street) contain single flat roofed carports supported on minimal steel columns which are set back some distance from the front boundary and appear to have been constructed prior to the introduction of the Residential Design Policy. While these do have impacts on the streetscape, such impacts are moderated both by the nature of the construction and the setbacks from the front boundary.
In addition, there are more substantial carports closer to the street boundary at No 19 Doris Street (double carport) and No 23 Doris Street (single carport). While the latter may have been constructed prior to the introduction of the Residential Design Policy, the carport at No 19 Doris Street is a recent development which on its face appears in contravention of the Policy. These carports, particularly the one at No 19 Doris Street, due to both its scale (a double carport as opposed to a single carport) and roof form (with gable feature) have a highly disruptive impact on the streetscape.
However, in spite of these impacts at this point in time, the streetscape retains a traditional pattern of predominantly single storey, reasonably closely packed dwellings with moderate yet consistent front setbacks and front gardens open to the street. In this context the two carports at Nos 19 and 23 Doris Street clearly represent anomalies.
The proposed carport, should it be approved, will add a further disruptive element to a reasonably consistent streetscape and would not, in the Tribunal's view, either 'retain the street character' as required by the 'Design Solution' of the Residential Design Policy or 'contribute to' or be 'consistent with, an established streetscape' as required by the Design Principles of the Codes.
Conclusion
Any decision on whether to exercise discretion in the matter under review involves weighing the impact of the proposed carport on the character of the streetscape against the intent of the Residential Design Policy to encourage residential development that harmonises with the existing streetscape and complements the character of the locality, and, more particularly, minimises the impact of vehicles on the amenity of the streetscape.
Clearly, any provision of an additional carport or garage accessed off the right of way will involve a reduction in the open space available in the rear garden and will impact on the amenity of the garden by requiring the removal of the existing brick shed and the existing external dining area under the pergola between the shed and the residence. Whether such impacts are regarded as 'major', as the applicant relying on clause SPC 8(i)(b)(4) of the Residential Design Policy contends, or not, the proposed carport has also to be assessed against the other relevant provisions of the Policy, in this case, the streetscape impacts.
Essentially, the applicant's case relies on a proposition of 'need'; this stated need is, however, premised on a 'requirement' to provide for the secure storage of three work vehicles on the lot in addition to any vehicles required for private use. This 'requirement' clearly falls outside the provision to 'adequately meet the needs of residents' in SPC 14 of the Residential Design Policy (even if that provision had relevance beyond on site car parking spaces), and, in the Tribunal's view, is not a reasonable expectation on a lot zoned for residential purposes with an R30/40 coding under TPS 1.
In addition, this 'requirement' has a temporal aspect; the applicant may well at some point either retire or in fact sell the residence. Should this occur, the 'requirement' to securely store work vehicles will dissolve, while the carport and its impacts on the streetscape, will remain.
In addition, the proposed carport will add a further disruptive element to a reasonably consistent streetscape and would, in the Tribunal's view, not meet the relevant provisions of either the Residential Design Policy or the Codes.
For those reasons, the review was dismissed and the decision of the respondent affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the City of Vincent is affirmed.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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