SMITH and TOWN OF VICTORIA PARK - [2010] WASAT 42

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SMITH and TOWN OF VICTORIA PARK [2010] WASAT 42

MEMBER: MR J JORDAN (MEMBER)

HEARD: 11 FEBRUARY 2010

DELIVERED : 30 MARCH 2010

FILE NO/S: DR 415 of 2009

BETWEEN: TINA MAREE SMITH
Applicant
AND
TOWN OF VICTORIA PARK
Respondent

Catchwords:

Town planning Development approval Refusal of addition of solid door to double garage Garage at 3 metre setback Garage in front of façade of house Policy on setbacks for garages Streetscape Policy

Legislation:

City of Perth Planning Scheme 1985
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 3.2.1, cl 5.3.1
Residential Planning Codes of Western Australia 1991
Town of Victoria Town Planning Scheme No 1, cl 3(1), cl 21(3), cl 30(1), cl 36(3), cl 36(5)

Result:

The application for review is dismissed
The decision of the Town of Victoria Park issued 1 September 2009 is affirmed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr R Cruickshank (Representative)

Solicitors:

Applicant: Self-represented
Respondent: Town of Victoria Park

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of a condition imposed on the approval granted for works already carried out and additional work on a dwelling at No 80 Geddes Street, Victoria Park. The application had included the installation of a roller door to the double width garage set back 3 metres from the Geddes Road frontage. The issue identified in this matter was whether the proposed garage door would detract from the streetscape.
The applicant said the proposed roller door warranted being granted approval as an exception to the policy of the Town of Victoria Park. This was because of the location of the house at the end of the street, security concerns, and because the roller door would enhance and not detract from the streetscape.
The proposed roller door, if allowed, would be the first in the streetscape at the reduced setback. The Tribunal did not identify differences in the circumstances of the site sufficient to distinguish it from other houses in this section of Geddes Street and to warrant special consideration. The Tribunal concluded that the proposed roller door would detract from the streetscape and be inconsistent with achieving the streetscape that the respondent was attempting to achieve with its town planning scheme and policies.
The Tribunal therefore decided to dismiss the application.

Introduction

These proceedings involve an application brought by Mrs Tina Maree Smith (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of condition 2 imposed by the Town of Victoria Park (respondent, Town or Council) on its granting of retrospective planning approval for certain works already carried out and for additional work on the dwelling at No 80 (Lot 246, Strata Lot 1) Geddes Street, corner Berwick Street, Victoria Park (site).
The site is one of three survey strata lots approved by the Western Australian Planning Commission in the subdivision of Lot 246 in 2003. The site has an area of 327 square metres, a boundary of 16.47 metres to Berwick Street on the western side and, on the northern side, a front boundary of about 20.12 metres to Geddes Street.
In July 2004, planning approval was granted for a two storey single house on the site. The development included a double garage adjacent to the eastern boundary with access off Geddes Street. The respondent said that the site had an area and dimensions that required concessions to be granted on setbacks so that a house of reasonable accommodation with adequate private open space could be developed. The 2004 approval granted a variation to the setback standards then in place, approving an average front setback of 4.5 metres and a setback to the proposed garage of 3 metres. Condition 10 of the 2004 approval stated:
The garage to Unit 3 is not to be enclosed and no rolladoor or similar garage door will be permitted on the garage structure in the future.
In May 2009, an application was made for the retrospective approval of a number of modifications made to the design of the dwelling when it was constructed. Following discussions between the Town and the applicant, amended plans, dated 3 July 2009, were lodged with the Town. These plans included all modifications requiring retrospective approval and new work, including the proposed addition of a roller door to the front of the double garage. The proposed roller door would be about 5.2 metres wide and be set back 3 metres from the Geddes Street frontage.
On 1 September 2009, Council issued its decision on the May 2009 application with the July 2009 amended plans. Most modifications to the dwelling were approved, but condition 2 of the decision stated:
A roller door or similar carport door is not permitted on the carport structure.
The applicant then filed an application for review, seeking the removal of condition 2 from the Council's decision. In the course of the hearing, the Tribunal, accompanied by representatives of the parties, viewed the site and nearby streets.

Planning framework

The Town of Victoria Town Planning Scheme No 1 (TPS 1) provides at cl 3(1) that TPS 1 includes:
(a)the Scheme text;
(b)each of the precinct plans;
(c)each planning policy;
…
In this matter, the relevant precinct plan is 'P5 Raphael Precinct' (Precinct Plan P5).
The site is zoned Residential under TPS 1 with a residential density coding of R30. A single house is a 'P' (permitted) use within a residential zone, but a planning application is required under cl 30(1) of TPS 1 to consider development standards.
Under cl 36(5) of TPS 1, in determining an application for development approval, the Council, and therefore the Tribunal on review, is required to have regard to:
(a)the provisions of this Scheme and of any other written law applying within the Scheme area …
(b)any relevant planning policy;
(c)any relevant precinct plan;
…
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
Pursuant to cl 21(3) of TPS 1, the development of the site is also subject to the Residential Design Codes of Western Australia (2008) (Codes).
The Codes include the following 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 boundary on one side, and being without a door unless that door is visually permeable.
Garage
Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles and attached to the dwelling.
Clause 5.3.1 of the Codes provides that a local planning policy may contain provisions that vary or replace certain design elements of the Codes. The Council's adopted Local Planning Policy Streetscape (Streetscape Policy) substitutes the provisions of design element 6.2, 'Streetscape', of the Codes.
The Streetscape Policy at cl 3.2.1, 'Setback of Buildings Generally', lists as acceptable development at cl A1.1 Primary Streets:
(i)6.0 metre average with a 3.0 metre minimum from the street boundary, to be determined in accordance with figure 1 'Street Setbacks' as contained in the Residential Design Codes, except where an existing dwelling is to be retained and a carport is proposed in the front setback area in accordance with subclause 3.2.3A 1.2 of this policy; and
(ii)is generally set back consistent with the street setback pattern;
…
The proposed roller door is to be attached to a garage. Clause 3.2.3, 'Setback of Garages and Carports', of the Streetscape Policy lists as acceptable development under cl A1.1:
(1)Garages projecting a maximum of 1.0 m forward of the façade of the dwelling; and
(2)Garages set back a minimum of 4.5 m from the primary street where there are no boundary walls or blank walls to the garage facing the street and comply with subclause (1). This may be reduced to a minimum of 3.0 metres where the development results from subdivision of the original corner lot and has its frontage to the original secondary street.
(3)Garages that incorporate boundary walls or blank walls facing a street set back a minimum of 6 metres from the primary street and compliant with subclause (1).
In this matter, the eastern wall of the garage is, by definition, a boundary wall because it is set back less than the required setback of 1 metre.
The Streetscape Policy sets out relevant performance criteria at cl 3.2.3 P1 as:
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 and vice versa.
The Council's TPS 1 'Policy Manual' includes Policy 3.1 Residential Design Guidelines, in which cl 3.1.6.9(b) states:
Rolladoors or similar carport doors will not be permitted on carport structures within front set back areas.

The issue

Parties agreed at a directions hearing before the Tribunal that the issue in dispute is:
Whether the inclusion of the roller door on the carport/garage structure detracts from the streetscape.

Discussion

The respondent referred to the 2004 planning approval for the existing house which allowed reduced setbacks from Geddes Street of 4.5 metres to the front of the house and 3 metres to the garage. The officer's report in the Council minutes of 17 August 2004 referred to setback concessions only being granted on condition that the garage had no roller door. This, it was said, was because of a concern that the door would have an adverse impact on the streetscape.
The respondent did not dispute that it was open to the applicant to seek approval for a roller door on the garage. The respondent argued, however, that the applicant had been the beneficiary of the concession on front setback to the garage and should not be allowed to have a roller door at the reduced setback because there would still be an adverse impact on the streetscape.
The applicant acknowledged that she and Mr Smith had not applied for a roller door in the original application of 2004 and had no objection to the condition not allowing such a door in 2004. She also said that she understood that the Streetscape Policy was acceptable and reasonable for the majority of developments in the district and is the preference of the Town.
It was Mrs Smith's submission, however, that special circumstances associated with the site, in particular her experience of living in the house since 2004, had led to the current application for a roller door. Mrs Smith said that it was now preferable and reasonable that approval be granted for the proposed roller door because of the location of the house, concerns about security, and because the roller door would enhance and not have an adverse impact on the streetscape.

The streetscape

The Tribunal considers that, in this instance, the relevant streetscape is to be found in that length of Geddes Street between its junction with Berwick Street at the western end and the intersection with Gloucester Street at the eastern end. Beyond Gloucester Street, the Tribunal considers that separate streetscape considerations apply because of the distance from the site and the dominance of Raphael Park.
Photographs provided by the parties, and the site visit, revealed a streetscape of mature trees, but with houses visible. The houses are not of uniform character, varying greatly in age and design, although the majority are single storey. The viewing revealed that of some 23 dwellings facing Geddes Street in the streetscape, three had garages with roller doors, three had carports forward of the dwelling and the remainder either had a car parked in the front setback or had a hardstand available for parking.
Mrs Smith said she considered cars parked in front yards detract from the streetscape. She said that her roller door, like others in the street, would improve the streetscape because it would hide vehicles from view. Mrs Smith produced a list of signatures from neighbours who, she said, when asked, had all been in support of her roller door.
Mr Alwyn T Jarman, a builder who lives diagonally opposite at 67 Geddes Street, appeared at the Tribunal in support of a letter he had written to the Council supporting Mrs Smith's application. He said that he considered the existing garage looked unfinished and detracted from the street. In his opinion, if it was finished with a roller door of an acceptable design, the streetscape would be improved.
Ms Naomi McIver, a town planner with the Town who appeared as a witness, said the streetscape was characterised primarily by single storey residential dwellings with front setbacks exceeding 5 metres. It was her evidence that the three dwellings in this section of the street, which have garages with associated garage roller doors, were at 57A Geddes Street, 58 Geddes Street and 69 Geddes Street. Each of these garages is at a building line similar to that of their respective associated dwellings. The garage at 57A Geddes Street has a boundary wall and a street setback of 6 metres. The garage at 58 Geddes Street has a boundary wall with a setback of some 4.98 metres and the garage to 69 Geddes Street has a setback of some 4.75 metres. Ms McIver said the garages at both 57A Geddes Street and 69 Geddes Street are compliant with TPS 1 and the Streetscape Policy. The garage at 58 Geddes Street does not comply with the acceptable development standards of the Streetscape Policy because it has a boundary wall, but it was approved in 1998 under the then City of Perth Planning Scheme 1985 and Residential Planning Codes of Western Australia 1991 which permitted a 4.5 metre setback to a garage.
In Ms McIver's opinion, the impact of car parking structures within the street is minimal, and the original open character of the street has been maintained, whilst allowing some newer residential development to take place. She considered that the addition of a solid roller door, or similar, to the front of the garage at a 3 metre setback, would result in the garage becoming significantly more dominant within the street, contrary to the existing character and appearance of the Geddes Street streetscape. She acknowledged that the property lies at the corner of Berwick Street, but said the garage was at the eastern boundary of the lot, wholly within the Geddes Street streetscape.
Ms McIver said that an open style, visually permeable roller door or gate would be acceptable to the Council. She produced photographs which she said illustrated that openstyle garage doors, by allowing a view into a garage and site, do not dominate the front elevation of a house to the extent that a solid garage door does. In her opinion, an openstyle door would minimise the impact of the structure on the streetscape. Alternatively, visually permeable gates at the front boundary would be permissible.
Mrs Smith said there were no other openstyle gates or garage doors in the streetscape, so one on her garage would be out of place and the vehicles would still be visible. Mrs Smith also said that if a gate was located at the front boundary, a car waiting to gain access would block the footpath and Mr Smith's vehicle with the work trailer attached would block the road while waiting for a front gate to open.
The Tribunal was presented with the clear difference of opinion between the applicant and the respondent as to whether parked cars or an opaque roller door make a preferable contribution to the streetscape. In this matter, the respondent's preference, as expressed in its policy, is that, to maintain the desired streetscape character, no fully enclosed structures be allowed forward of the building line of a dwelling, even if this results in parked cars being visible. The applicant has acknowledged that the Council has a policy in place, but has argued that the site and their proposed development should be treated differently. She considers her proposed roller door should be allowed because the garage would be enclosed and the streetscape would be improved.
It is of concern to the Tribunal that the formally adopted policy of the respondent is not readily set aside. Without an adequate basis for setting aside the policy, the outcome would be inconsistent with orderly and proper planning.
The Tribunal notes that across the Geddes Street frontage of the site is an 1800 high brick wall. The house next door has a similar wall, but the expanse of the wall is broken up by the entrance to a driveway and a visually permeable gate. The Tribunal has formed the view that adding the roller door to the garage at this reduced setback, to create with the front boundary wall a continuous anonymous façade, would be out of character with the streetscape.
If the roller door was approved at the reduced setback proposed, the resultant development would be different from every other house in the streetscape. No lots in the relevant section of Geddes Street have in the front setback a garage with roller door set forward of the building line of the associated dwelling. In this respect, the Tribunal considers that the proposed roller door would detract from the streetscape and be inconsistent with the policy objectives.

Use of the garage and streetscape

Mrs Smith, using photographs as illustration, said that with no garage door or an openstyle door, it would still be possible for neighbours and passersby to view the tools and general household items stored in the garage. She said this was unsightly, but there was nowhere else on site to store these items. This was not good for the streetscape and a roller door would conceal these goods.
The Tribunal is not persuaded the garage is the only location on the site for the storage of all of these goods. It is also apparent that the manner in which the items are stored effectively places many of them on display. The applicant choosing to have the domestic items on display is not considered to be a basis for setting aside the consistent application of the policy.

Security

The applicant said a roller door would provide her with greater security. Mrs Smith referred to what she said was heavy traffic, including buses in Geddes Street. She said vehicles stationary at the stop sign at the junction of Geddes Street with Berwick Street just outside her house was a concern. This was because people in vehicles, particularly buses, were able to view the contents of the garage and if the garage was empty, the conclusion could be drawn that no one was home and this would be an invitation to burglars. Observers could also see that there was access currently available to the rear of the house. Her husband's trailer and work tools had been stolen from the garage and the house had been burgled, once while they were in the house. Mrs Smith said that a roller door would prevent anyone knowing whether vehicles were present and prevent access to the garage and the rear of the house on that side. This would make her feel safer.
In the opinion of Ms McIver, an openstyle door on the garage would maintain security for the residents. Mrs Smith said that an openstyle door or gate would not solve her security problems because the inside of the garage would still be exposed and she would still feel vulnerable.
A question arises of how far back along Geddes Street from the stop sign exposure to traffic would be a consideration. It was also noted that there are two bus stops further east along Geddes Street, one on each side of the road, and houses near these would be subject to the same scrutiny. The Tribunal accepts the applicant's concerns are real, but, as attested by the applicant, whether the car is present or not has not deterred burglars.

There was also no evidence that the applicant's house was subject to any greater threat of burglary than other houses in the street because of volumes of traffic or location near the stop sign. The Tribunal is not persuaded that a vehicle being stationary would stimulate any greater contemplation of burglary than when the car was being driven along the street. A roller door might create a greater sense of security, but the Tribunal does not accept that the site can be sufficiently distinguished from neighbouring lots in this regard to warrant different consideration and to allow a roller door in conflict with the policy.

The wider locality

Ms McIver referred to the site being within the Raphael Precinct, citing from Precinct Plan P5, which states:
… The retention of original housing and the promotion of selected sensitive redevelopment consistent with existing style, scale and character will consolidate the area as a low to medium density neighbourhood … The application of the Residential Planning Codes and Design and development guidelines shall ensure new buildings in the lower density areas reflect the existing traditional characteristics of the precinct …
In her opinion, the Raphael Precinct was not characterised by garages in the front setback with roller doors. She considered that this proposal would set an undesirable precedent for similar development in Geddes Street and would encourage the creation of a streetscape dominated by garage doors which will harm the overall character of the Raphael Precinct. To exercise the discretion available at cl 36(3) of TPS 1 in favour of the proposal would, in her submission, detract from the existing character of the area and, therefore, would not be consistent with the orderly and proper planning of the locality.
Mrs Smith was of the view that changes were already occurring in the Raphael Precinct and it was now too late to keep the character of the area the same as when Policy B5 was adopted. She produced a list of addresses in Geddes Street and surrounding streets, 15 of which she said had garages at less than 4.5 metres from the front boundary and another 13 of which had solid garage doors that complied with the 4.5 metre setback requirement.
The Tribunal notes that the presence of roller doors in other streets does not, of course, have an impact on the streetscape of which the site is part. However, the policies and scheme provisions relevant to the proposed development are also relevant to the remainder of the Raphael Precinct. The presence of the other roller doors is one measure whether the policy is soundly based and has been consistently applied. From the examination of the examples given and a viewing along the streets in which they were located, the Tribunal has formed the view that those streets have streetscapes in which the roller doors were the exception rather than commonplace and very few were on garages in the front setback forward of the building line of the associated dwelling. The examples that were exceptions were associated with corner houses where considerations can be different, depending from which street access is gained to the respective site.
From the evidence, the Tribunal has formed the view that the character of the Raphael Precinct is generally consistent with the objectives of the policy and the town planning scheme provisions. There might be specific locations in the precinct where an exception to the policy might be considered, but the Tribunal has concluded that the site is not such a location.

Conclusion

The issue identified by the parties was whether the addition of the roller door to the garage would detract from the streetscape.
In summary, the applicant was of the opinion that in the streetscape the roller door would be 'uniform and appealing', unlike the cars parked in other front yards which detract from the streetscape. In addition to improving the streetscape, the applicant also said that she warranted special consideration because of the location and size of her lot. The garage had to be used for storage of goods, which detracted from the streetscape, and the garage being open presented a security risk to her house and belongings. A roller door would resolve these concerns.
The applicant asked that a decision be not simply based on the Council's policy, but that the consideration be given to her needs for a roller door, the positive impact she considered the door would have and what she considered to be common sense.
The existing building on the site has a reduced setback, which makes it different from others in the streetscape. As set out above, however, from its consideration of the evidence and the submissions, the Tribunal has formed the view that the circumstances of the site do not sufficiently distinguish it from other residences to warrant it being granted special consideration and exception from the policy on roller doors.
The Tribunal has concluded that the addition of the roller door to the development would detract from the streetscape and be inconsistent with the objectives the respondent is attempting to achieve with TPS 1 and its policies.
The Tribunal has therefore decided to dismiss the application.

Order

1.The application is dismissed.
2.The decision of the Town of Victoria Park, issued 1 September 2009, is affirmed.

I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER