SHEPPARD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2005] WASAT 233

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: SHEPPARD and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 233

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 AUGUST 2005

FILE NO/S: DR 426 of 2005

BETWEEN: LT SHEPPARD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision application - Four survey strata lots and common property accessway - Retention of existing house - Accessway 2.6 - 2.7 metres wide at street frontage - Whether accessway safe - Generally inappropriate to approve subdivision which does not conform to Design Codes - Whether streetscape benefit of retention of house warrants concession to minimum driveway width

Legislation:

Dividing Fences Act 1961 (WA), s 7

Town Planning and Development Act 1928 (WA), s 20(1)(a), s 20(5), s 26(1)(a)

Result:

Application for review dismissed
Subdivision approval refused

Category: B

Representation:

Counsel:

Applicant: Mr SJ Bain (Agent)
Respondent: Ms JM Taylor

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr LT Sheppard sought review of the refusal of a survey strata subdivision application. Because Mr Sheppard wished to retain the existing house, the proposed common property accessway had a width of only 2.6 2.7 metres for a length of 25.4 metres from the street frontage. The sole issue was whether the proposed access arrangement was acceptable and appropriate.
The Tribunal determined that the access arrangement was not acceptable and appropriate for two reasons. First, the Tribunal was not satisfied that the arrangement would be safe and would therefore conform to the performance criteria in the Residential Design Codes of Western Australia. Second, the retention of the house, while desirable, did not warrant a further concession to the already concessional minimum 3.0 metre access width in this instance.

Introduction

Mr LT Sheppard has applied to the Tribunal for review, in accordance with s 26(1) of the Town Planning and Development Act 1928 (WA) (Act), of the Western Australian Planning Commission's (Commission) decision to refuse to grant approval to a survey strata subdivision of Lot 64 (No 148) Carr Street, West Perth (site). The site has a regular shape, a width of 15.11 metres, a depth of 67.13 metres, and an area of 1012 square metres. It is zoned "Urban" under the Metropolitan Region Scheme and "Residential R80" under the Town of Vincent Town Planning Scheme No 1 (TPS1). Erected towards the front of the site is a singlestorey dwelling house with a driveway between the house and the southeastern boundary.
As originally submitted, the application proposed four survey strata lots, with areas of 372 square metres, 182 square metres, 180 square metres and 200 square metres, and a common property lot with a width of 1.5 metres from the street frontage along the southeastern boundary of the site for most of its length. The existing house was proposed to be retained within the 372 square metre survey strata lot.
The application indicated that vehicular access to the proposed survey strata lots would be obtained via a 4.8 metre wide easement to be acquired over the adjoining property to the east (Lot 22). Lot 22 comprises a built survey strata development of eight dwellings. Immediately to the east of the boundary fence which separates the site from Lot 22 is a 1.3 metre wide nature strip containing shrubs and small trees and then a 3.5 metre wide brickpaved driveway. The subdivision plan contemplated that an easement would be obtained over both the built driveway and the nature strip of the adjoining development.
The Commission referred the application to the Town of Vincent, the Water Corporation, Western Power and Telstra. The Town recommended approval of the application subject to conditions. The other authorities raised no objection and recommended the imposition of standard servicing conditions.
The application was refused by the Commission for the following three reasons:
"1.Approval to the subdivision would result in the creation of survey strata lots which do not have direct access to a public road for the provision of postal services, rubbish collection services and public utility services.
2.The Commission is not satisfied that the 4.8 metre wide vehicular access easement would allow for sufficient vehicular access to Carr Street for the proposed survey strata lots and the eight grouped dwelling development located at Lot 22 Carr Street, West Perth.
3.Approval to the strata title application would set an undesirable precedent for the further subdivision of other lots in a similar manner."
Following the commencement of the proceedings, Mr Sheppard proposed an amended survey strata plan which does not involve an easement for vehicular access over Lot 22. The amended plan still proposes the retention of the existing house and a four lot survey strata subdivision of the site, but each of the survey strata lots has been reduced in size so as to accommodate an enlarged common property lot from the street frontage along most of the south-eastern boundary of the site. It is now proposed that all pedestrian and vehicular access to the three rear survey strata lots will be obtained through the common property lot. The survey strata lots proposed in the amended plan have areas of 330 square metres, 160 square metres, 164 square metres and 170 square metres. The common property accessway has a nominated width of 2.7 metres for a length of 25.4 metres from the street frontage and 4.0 metres for its remaining length of 30.5 metres.
Mr DJ Carter, a town planner employed by the Commission, recommended that the Commission resolve not to support the amended plan on the basis that it is inconsistent with cl 3.7.2 of Policy No DC2.2 Residential Subdivision (DC2.2). Mr Carter's recommendation was endorsed by a delegate of the Commission.
The Tribunal considered it appropriate that the proceedings be determined entirely on the basis of documents without a hearing in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA). Mr Sheppard sought approval of the application on the basis of the amended plan. The Commission did not oppose leave being granted to amend the subdivision plan, but opposed the grant of approval to it. For reasons set out below, the Tribunal has determined that the application should be refused, because it is not satisfied that the proposed accessway would be safe and would therefore conform to the performance criteria in the Residential Design Codes of Western Australia (Design Codes), and because it is inappropriate to depart from the minimum width for accessways specified in cl 3.7.2 of DC2.2 in this instance.

Is the amended access arrangement acceptable?

Clause 19(2) of TPS1 provides that development of any land for any of the residential purposes dealt with by the Design Codes "is to conform to the provisions of those Codes". The acceptable development provisions in cl 3.5.4 of the Design Codes require that driveways have a minimum width of 3 metres at the street frontage where serving four or less dwellings (par A4.2), be located no closer than 0.5 metre to a side boundary (par A4.3), be designed for vehicles to enter the street in forward gear where serving three or more dwellings (par A4.4), and have a minimum width of 4.0 metres, which may be reduced to 3.0 metres (where necessary to retain an existing dwelling) where serving multiple or grouped dwellings (par A4.5). The term "grouped dwelling" is defined in cl 2.2 of the Design Codes to include "a dwelling on a survey strata with common property".
Mr SJ Bain, a town planner who represented and gave evidence on behalf of Mr Sheppard in the proceedings, conceded that the proposed subdivision did not conform to the acceptable development provisions of the Design Codes. However, he contended that the proposal would, nevertheless, satisfy the performance criteria set out in par P4 of cl 3.5.4 of the Codes which states as follows:
"Vehicular Access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape".
In particular, Mr Bain contended that the proposed development would be "safe in use" on the basis of a letter from Mr Philip Moore, a transport engineer.
Mr Moore stated that he had inspected the existing driveway at the site which, on the amended plan, would constitute the narrowest portion of the proposed driveway. He noted that, although the driveway is dimensioned at 2.7 metres on the subdivision plan, the width of the area between the existing dwelling and the boundary fence in fact tapers to a minimum of 2.6 metres. The "most constrained section of the driveway" is 15.4 metres in length adjoining the dwelling. The eaves on the east side of the dwelling overhang the driveway by about 0.75 metre, but at a height "well clear of cars passing underneath". He noted that there are existing rainwater downpipes and waste water pipes attached to the side of the house along the driveway. The photograph which he took also indicates that there are three windows on the driveway with sills projecting slightly into the driveway.
Mr Moore noted that "most cars on the road today are under 2 metres wide", and that "a 2 metre wide vehicle passing along the driveway will have a minimum 300 millimetre clearance on each side". He considered that "this is a reasonable clearance to have available for travelling forward over the short distance past the existing house", although "some drivers could be expected to have difficulties reversing a vehicle with 300 millimetre clearance on each side even without the asbestos fence being present, and there is risk of rainwater pipes and waste water pipes being hit by a passing vehicle". Mr Moore concluded his assessment as follows:
"I consider that the existing driveway width, whilst being narrower than the 3.0 3.5 metres normally provided in these circumstances, is reasonable as long as the following conditions can be met:
• There will be no doorway to the existing dwelling constructed along the driveway
• The existing downpipes and waste water pipes along the driveway are relocated so they are not exposed to passing vehicles
• Provision is made for vehicles to turn around inside the site so that exit is in a forward direction
• The asbestos dividing fence is removed."
Mr Bain noted that his client is agreeable to Mr Moore's requirements, and suggested that they can be dealt with as conditions of approval.
Mr Bain also contended that the proposed subdivision has considerable merit, because "retention of the existing dwelling is encouraged by the Town of Vincent and is desirable in terms of preserving the streetscape". In this regard, he referred the Tribunal to a number of policies adopted by the Town, namely Policy No: 3.1.5 Cleaver Precinct, Policy No: 3.2.1 Local Character Policy, Policy No: 3.2.4 Street Setbacks and Policy No: 3.3.2.2 Florence Locality Statement.
Mr Carter considered that the proposed 2.6 - 2.7 metre wide access leg "is too narrow to accommodate the necessary public utility services and to accommodate safe vehicle manoeuvring". He considered that it "also has the potential adversely to affect the safe use of the access leg by other users such as pedestrians and cyclists". He emphasised, in particular, the terms of cl 3.7.2 of DC2.2 which requires that, for dwellings without street frontage, access should be provided in accordance with the following:
"In accordance with the Codes strata development (including survey-stratas with access via common property) to be provided with driveways of 4m width, or 3m width where necessary to retain an existing dwelling."
The Tribunal does not consider that the proposed accessway is acceptable and appropriate for two reasons.
First, although the discretion of the Commission, and of the Tribunal on review, to grant approval to a subdivision application is not fettered by the provisions of a town planning scheme or of the Design Codes (Act s 20(5)), it is generally inappropriate, in the exercise of planning discretion, to approve a subdivision that does not conform to the provisions of a scheme or of the Design Codes. This is particularly the case where the provision in question is concerned with public safety. In this case, the Tribunal is not satisfied that the proposed vehicular access would conform to the performance criterion in cl 3.5.4 of the Design Codes that it "be safe in use" for the following three reasons:
(i)The Tribunal does not consider that Mr Moore's fourth requirement, namely that the existing dividing fence between the site and Lot 22 should be removed, is appropriate and should be imposed by way of condition of approval. The removal of the dividing fence would expose the 1.3 metre wide nature strip along the western boundary of Lot 22 to damage from vehicles using the proposed accessway. Moreover, even if the owners of Lot 22 were to agree to the removal of the dividing fence, thereby satisfying the proposed condition of approval, they would retain the right under the Dividing Fences Act 1961 (WA) to construct a sufficient dividing fence between the properties and, indeed, to require the owners of the site to join in or contribute to the construction of a fence: Dividing Fences Act 1961 s 7.
(ii)It appears from Mr Moore's letter that his primary focus was on vehicular safety and the safety of persons exiting the existing house, rather than on pedestrian safety more generally. He reasoned that a 2 metre wide vehicle passing along the driveway will have a minimum 300 millimetre clearance on each side and that "this is a reasonable minimum clearance to have available for travelling forward". He also noted that "there is no doorway at the side of the house, and so there is no risk of someone stepping into the driveway from the house as a vehicle is passing". He did not, however, at least expressly consider the safety risk to pedestrians accessing or exiting the three other proposed survey strata lots. The Tribunal is not satisfied that a 300 millimetre clearance is sufficient to ensure the safety of pedestrians using the accessway.
(iii)The photographs indicate that the three windows of the existing house which face the proposed accessway have small projecting sills. Although the sills do not appear to project more than about 50 millimetres, even such a projection assumes disproportionate significance because of the very small margin for error available in such a proposed, constrained environment. Moreover, Mr Moore does not appear to have taken the projections into account. It is not apparent on the evidence whether the sills could practically be removed. In relation to matters of public safety, it is appropriate that the Tribunal exercise a precautionary approach.
Second, although the Tribunal accepts that the retention of the existing house is desirable in terms of preserving the streetscape and that, if the house is to be preserved, the proposed driveway has the maximum width possible, the Tribunal does not consider that this factor warrants a concession to the minimum 3.0 metre driveway width referred to in cl 3.7.2 of DC2.2 in this instance. The 3.0 metre minimum driveway width already reflects a concession to the otherwise applicable minimum 4.0 metre width because of the retention of a building. A further concession to the concessional minimum is not appropriate in this case in order to retain the building, particularly because of the safety issue referred to earlier.
Finally, the Tribunal notes that, had it been satisfied that the access arrangement would be safe and that a concession to the concessional 3.0 metre minimum driveway width is appropriate, it would have required evidence and submission in relation to a further issue, not raised by the Commission, before exercising the statutory discretion to grant subdivision approval.
In order to approve the creation of a survey strata or freehold lot, the Tribunal must be satisfied that the proposed lot is reasonably capable of development in accordance with the applicable controls. Although Mr Moore's third condition referred to at par [15] above, namely that "provision is made for vehicles to turn around inside the site so that exit is in a forward direction", could be imposed by way of condition of approval, the physical characteristics of the proposed northernmost lot are such that it is not apparent on the evidence presently submitted that there is sufficient area for a vehicle to turn around within that lot and to accommodate reasonable residential development in conformity with the applicable planning controls.
In this regard, the proposed northernmost lot has an area of only 170 square metres. Furthermore, because the common property accessway merely abuts the lot at its corner, a vehicle accessing the lot could not use the common property portion of the site to manoeuvre in. Ultimately, however, this question does not need to be explored, as the access arrangement is not acceptable and warrants the refusal of the subdivision application.

Orders

The Tribunal makes the following orders:
1.The application for review of the decision of the Western Australian Planning Commission to refuse approval to the survey strata subdivision of Lot 64 (No 148) Carr Street, West Perth is dismissed.
2.Approval to the survey strata subdivision of Lot 64 (No 148) Carr Street, West Perth is refused.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER