Rice and Anor and Town of Vincent
[2007] WASAT 108
•15 MAY 2007
RICE & ANOR and TOWN OF VINCENT [2007] WASAT 108
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 108 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:342/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 15/05/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | CRAIG RICE HELEN RICE TOWN OF VINCENT |
Catchwords: | Town planning – Local government – Carports – Streetscape – Application of policy – Precedent – Whether policies abandoned – Consideration of approval statistics – Application dismissed |
Legislation: | Planning and Development Act 2005 (WA) Town of Vincent Town Planning Scheme No 1, cl 19, cl 38(5) Residential Design Codes of Western Australia (2002), cl 3.2.3, cl 3.2.3 A3.4 |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the Town of Vincent to refuse the application to construct a double carport in front of the existing dwelling at Lot 194 (No 114) Shakespeare Street, Mount Hawthorn, is reaffirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RICE & ANOR and TOWN OF VINCENT [2007] WASAT 108 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 15 MAY 2007 FILE NO/S : DR 342 of 2006 BETWEEN : CRAIG RICE
- HELEN RICE
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning – Local government – Carports – Streetscape – Application of policy – Precedent – Whether policies abandoned – Consideration of approval statistics – Application dismissed
Legislation:
Planning and Development Act 2005 (WA)
Town of Vincent Town Planning Scheme No 1, cl 19, cl 38(5)
Residential Design Codes of Western Australia (2002), cl 3.2.3, cl 3.2.3 A3.4
(Page 2)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicants : Selfrepresented
Respondent : Mr S Bain (Acting as Agent)
Solicitors:
Applicants : Self-represented
Respondent : SJB Planning and Urban Design (Planning Consultants)
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicants had sought review of the respondent's refusal to allow the construction of a carport in front of a recently completed dwelling. The applicants proposed to build a double-width carport with a front setback of 1.09 metres.
2 The respondent's reasons for refusing the application were based on the application of certain written policies relating to vehicular access and street setbacks.
3 The Tribunal considered that the policies had been consistently applied. The Tribunal found that the planning merits of the proposal were not sufficient to overcome the respondent's application of the policies in respect of the applicants' proposal.
4 The application for review of the respondent's decision was dismissed.
Introduction
5 In May 2005, Mr & Mrs Rice (applicants) lodged an application for additions and renovations to an existing dwelling on No 114 Shakespeare Street, Mount Hawthorn (subject land). The application included a carport in front of the dwelling.
6 The application was approved by the Town of Vincent (respondent) in June 2005. However, the carport was excluded from the approval. The approved plans and elevations contained notes that the carport was "not part of approval".
7 Subsequently, construction proceeded on the approved June 2005 plans without the carport. From the witness statement of the applicants, it is evident that construction was substantially completed by March 2006.
8 During this period, the applicants held discussions with the respondent's planning officers concerning the carport. An application was made for a new carport in March 2006. This application was refused in March 2006.
9 A new application, dated 1 September 2006, was lodged for a double carport. The application contained examples of alleged precedents and arguments supporting a variation in the application of the vehicle access
(Page 4)
- policy. The application of that policy would, according to the respondent, lead to the refusal of the application.
10 On 20 September 2006, the respondent refused the application for the following reasons:
"(i) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality; and
(ii) the non-compliance with the Town's Policies relating to Vehicular Access and Street Setbacks as the proposed carport is required to be accessible from the rear/eastern [right of way], which is 5 metres wide, Town owned and sealed."
11 The applicants lodged an application for review in relation to the respondent's refusal on 13 October 2006. The Tribunal issued orders that, after submission of witness statements and any other supporting material, the matter would be determined on the documents.
12 The issue to be determined is how the discretion available to the Tribunal should be exercised, having particular regard to the respondent's policies.
Subject land
13 The subject land is described as Lot 194 (No 114) Shakespeare Street, Mount Hawthorn. The subject land has a 12.19 metre frontage to Shakespeare Street. It is 37.21 metres deep. The rear boundary is 12.19 metres wide and adjoins a sealed right of way. The subject land has an area of 453 square metres. There is a small fall from front to rear, with the site plan showing levels on the southern boundary as 9.8 near the front of the subject land and 9.6 near the rear.
14 The subject land contains a recently completed two storey dwelling with a total floor area (including an al fresco area and deck) of 348.71 square metres. The front setback is shown as 7.62 metres and the rear setback is shown as 9.86 metres to the al fresco area and 13.36 metres to the main dwelling.
15 The subject land is located in the "Ellesmere Locality" as described in the Town of Vincent's Planning and Building Policy Manual: Residential Design – Locality Statements; Policy 3.5.5 – Ellesmere Locality Plan 5 (Ellesmere Locality Plan).
(Page 5)
16 The subject land is typical of this locality. The subdivision pattern is described in the Ellesmere Locality Plan as:
" … [S]treet blocks running north-south and hence east-west orientated lots. All street blocks have rear laneways.
...
East of Flinders Street, lots are typically around 445 square metres with 12 metre frontages."
17 Housing in the locality is described in the Ellesmere Locality Plan as:
" ... [M]ostly from the 1930s, although there are individual houses dating from the first decades of the century, and a significant proportion from the 1960s. The predominant style is Californian Bungalow."
Planning framework
18 The site is zoned "Residential R30" under the Town of Vincent Town Planning Scheme No 1 (TPS 1).
19 Clause 19 of TPS 1 requires residential development to comply with the Residential Design Codes of Western Australia (2002) (Codes).
20 Clause 38.5 of TPS 1 sets out various matters to be considered by the respondent when determining an application made under TPS 1. Matters to be considered include:
" ...
b) any relevant planning policy;
...
g) the orderly and proper planning of the locality; and
h) the conservation of the amenities of the locality."
21 Setbacks for carports and garages are described in the section of the Codes describing streetscape requirements. In cl 3.2.3 of the Codes, acceptable development standard A3.4 which allows:
(Page 6)
- " ... carports within the street setback area provided the width of the carport does not exceed 50[%] of the frontage at the building line and the construction allows an unobstructed view between the dwelling and the street … "
22 However, the Codes place a restriction on the application of Acceptable Development Standards to streetscape requirements. The following statement is made at the beginning of the Acceptable Development Standards for streetscape requirements (on page 52):
"Except as otherwise provided for in an adopted Local Planning Policy development that complies with the following [not reproduced] is deemed to meet the relevant Performance Criteria[.]"
23 Three local policies are relevant to this application. They are:
• Policy 3.2.4 – Street Setbacks (Policy 3.2.4);
• Policy 3.2.6 – Vehicular Access (Policy 3.2.6; and
• Ellesmere Locality Plan (already mentioned above).
24 Clause 6 of Policy 3.2.4 requires:
"Car parking is to be accessible from existing Rights-of-Way where (legally) available. Consequently the Town of Vincent accepts that where no feasible alternative exists, the street setback area may be utilised for carports and unroofed parking spaces."
25 Policy 3.2.4 contains a table listing acceptable development and performance criteria. Under the heading "Acceptable Development", the policy states:
"Development which complies with the following [not reproduced] will generally be approved."
26 The subtlety of the distinction between "acceptable" and "generally" is not explained. The Acceptable Development of Policy 3.2.4 includes item A2.3, which states that:
"Carports otherwise setback in accordance with the [Codes]."
27 The important qualifier is the word "otherwise". Acceptable Development item A2.1, which precedes A2.3 requires that:
(Page 7)
- "Car parking [is] to be accessible from ... existing Rights-of-Way [sic] where (legally) available."
28 Access is available from a right of way. Therefore, A2.3 is not applicable in the circumstances of this case. The Performance Criteria P2 becomes the relevant guide to the exercise of discretion. P2 requires:
"The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street."
29 Section 3 of Policy 3.2.6 requires:
"Off-street parking for motor vehicles of residents is to be provided wherever possible."
and
"Where rear or side access is available, residents are to be required to provide on-site parking at the rear of the lot."
30 The Desired Future Character of the Ellesmere Locality Policy includes the following relevant standards:
"Single houses will remain the predominant dwelling types within this locality."
and
"Generally, any redevelopment is to respect and maintain the existing character of the area."
and
"Front setback areas are to be landscaped and, preferably, devoid of parking spaces. Where available, on-site parking is to be accessed from a right of way."
Summary of the applicants' arguments
31 The applicants have presented several arguments supporting their application that are mainly centred on safety and precedent. They have also argued on the basis of compliance with streetscape standards and the existence of reasonable grounds to vary the policy requirements referred to above.
(Page 8)
32 The applicants have expressed concern about the lack of lighting in the right of way, arguing that this raises safety issues in relation to returning at night.
33 They are also concerned about the narrowness of the right of way, arguing that the lack of room raises safety issues for their children when the children are using the carport.
34 The safety issue is again raised in the applicants' concerns about their children while they are playing on the premises. The small amount of space in the rear yard may result in them playing in the carport or, alternately, in the front yard where they will be difficult to supervise.
35 The applicants' concerns about limited private external space are emphasised by their desire to build a swimming pool sometime in the future. The rear yard, excluding the covered al fresco area, is 9.86 metres by 12.19 metres. The applicants argue that if a double carport is built in the rear yard then there will be insufficient room for a swimming pool as well as external recreation areas. They refer to discussions with Council staff where they were informed that a proposed swimming pool has been grounds for Council to vary policy requirements.
36 The applicants have recorded several "precedents" in the locality and have submitted photographs of several carports that they allege have been recently built in the area. In addition to nearby streets, the photographs include double carports within the front setback at 83, 106, 129, 138 and 149 Shakespeare Street, Mount Hawthorn. The photograph of 129 Shakespeare Street, Mount Hawthorn, shows a recent two storey dwelling that includes a double carport fitted with a garage door. The applicants argue that Council has, in effect, provided exemptions to the policies because several of the examples provided are recently approved carports in front of new dwellings.
37 The Council has given the applicants permission to build a crossover to an existing driveway in their front setback area where they now park their two cars. The applicants argue that streetscape would be improved by the construction of a carport to cover the cars. Furthermore, they argue that the proposed carport complies with Council's policies in terms of its design, materials, colour and roof pitch.
(Page 9)
Summary of the respondent's argument
38 The respondent's primary argument is the non-compliance with policy requirements supported by evidence that 87.7% of properties in the locality do not have carports.
39 The Council argues that its policies require car parking to be accessed from right of ways where they are available. It notes that a right of way is available for the applicants and that the right-of-way is paved and drained.
40 The Council also argues that the proposed carport fails the performance criteria under the streetscape policy because it will be inconsistent with the pattern of development in the locality and is inconsistent with the desired future character of the locality as described in the Ellesmere Locality Policy. It also breaches the existing character of the "Ellesmere Locality", because it does not maintain the pattern of existing street setbacks.
41 The respondent submitted evidence describing the existence of carports in the eastern half of the "Ellesmere Locality", which covers the subject land and two streets in an easterly and westerly direction. The following statistics were provided by the respondent:
| 258 | 87.7% |
| 33 | 11.2% |
| 3 | 1.1% |
| 0 | 0.0% |
| 294 | 100% |
42 The respondent argues that the significance of the statistics is that they show the area has a typically open streetscape and that only 12% of properties have carports in the front setback.
(Page 10)
Discussion of the case and findings
43 Some of the factual evidence is disputed by the applicants. They disagree that there are no carports to new dwellings and they also disagree that their house is a new house.
44 The disagreement over facts is not significant to the outcome of this review. For example, the respondent's table records nil carports to new dwellings, and only three carports to non-original dwellings. The difference between new and non-original dwellings is subtle.
45 The significant statistic, however, is that in the locality, 36 dwellings of various types have carports and 258 dwellings do not have carports.
46 It is not significant to the outcome of this review whether the applicants' dwelling is described as an original dwelling, a new dwelling or the class in between – a non-original dwelling. The Tribunal does not accept the respondent's description of the applicants' dwelling as a "new dwelling". Although the additions to the dwelling were extensive, the location of existing walls had an impact on the location of the dwelling and the front setback.
47 Of some significance, is the evidence submitted by the applicants of 12 recently constructed carports in the locality. This evidence is supported by the respondent in an attachment to the respondent's witness statement which lists 12 approved carports with approval dates ranging from 13 June 2000 to 8 May 2006. The last approval – a carport at 125 Dunedin Street, Mount Hawthorn – was approved between the two refusals, in relation to the applicants, for their carport in March and September of 2006.
48 No evidence was provided to describe why the respondent exercised discretion in the cases described since June 2000. The approvals indicate the respondent might, in an appropriate case, exercise discretion to approve which is available within the planning framework.
49 The evidence of the existing streetscape, when combined with the objectives and general content of the policies, indicates that the respondent has relied on the individual merit of each application, rather than consistency with streetscape.
50 Therefore, before returning to streetscape, the Tribunal should also consider the individual merit of the applicants' proposal and circumstances.
(Page 11)
51 With respect, the applicants' arguments on safety cannot be accepted as grounds for exemption from policy requirements. The applicants have described possible safety issues but there is no evidence that there does not exist practical solutions to these possible problems.
52 The applicants have also described inconvenience and the loss of potential to enjoy the full amenity potential of their site, including the possibility that they may not be able to achieve their intention of building a swimming pool.
53 The Tribunal accepts the argument of the respondent that the applicants had prior opportunity to examine other solutions that may have enabled better use of the rear of the site, as well as a rear carport.
54 The applicants' desire for a reasonable private external living area, together with a swimming pool, must be balanced against reasonable expectations of living in a house on a lot size of 453 square metres in a locality where local planning policies seek to protect the streetscape generally characterised by consistent front setbacks and a lack of carports in the front setback area.
55 The policies and evidence do not provide a numerical value for existing front setbacks in the locality except to note that the setbacks are consistent and characteristic of the area. The applicants' site plan shows their dwelling with a setback of 7.62 metres. If this dimension is characteristic of the locality, then the reasonable expectation is that any new dwelling or addition will occur at or behind the 7.62 metre setback line.
56 In this situation, the applicants' desires must be balanced against the reasonable amenity expectations of the community. The reasonable community expectations of amenity are defined by the planning framework, including the respondent's policies set out above.
57 The respondent has issued approvals for carports in the front setback. Nevertheless, although some of these approvals were recent, when combined with other carports, they still represent only 12% of properties in the locality. The Tribunal finds that the evidence supports the respondent's argument that the policies are consistently applied.
58 The 12 exceptions since June 2000 do not indicate a breakdown of the application of the planning framework or an abandonment of the policies.
(Page 12)
Conclusions
59 Local planning policies seek to protect the streetscape characteristics of the locality where 88% of properties do not have carports or garages in the front setback area. The policies require car parking to be accessed from right of ways where they are legally available. There is a paved and drained right of way at the rear of the subject site.
60 In this review there is not sufficient merit of relevant individual circumstances or site characteristics to support the application of any discretion to vary these policy requirements.
61 For these reasons, the application must be dismissed.
Orders
62 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the Town of Vincent to refuse the application to construct a double carport in front of the existing dwelling at Lot 194 (No 114) Shakespeare Street, Mount Hawthorn, is reaffirmed.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER
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