Snedden and Town of Victoria Park
[2009] WASAT 18
•29 JANUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SNEDDEN and TOWN OF VICTORIA PARK [2009] WASAT 18
MEMBER: MR P McNAB (MEMBER)
HEARD: 1 OCTOBER 2008
DELIVERED : 29 JANUARY 2009
FILE NO/S: DR 224 of 2008
BETWEEN: RICHARD SNEDDEN
Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Town planning - Development approval - Proposed development of two storey dwelling at rear of property - Development abutting right of way - Conditional approval given - Significant 'variations' offered by respondent local government - Further 'variations' sought and refused - Applicant also sought to remove Zincalume roof finish - 'Variations' deriving from 'departures from' acceptable development criteria of local planning policy - Variations sought greater setback - Local policy mandated by town planning scheme to apply to planning decisions - Effect of policy as applied was to minimise setbacks in such developments - Resulting 'forward development' promoted interaction between dwellings and rights of way - Goals included surveillance of activities in rights of way - Observations made by the Tribunal on the relationship between performance criteria and acceptable development criteria - Tribunal cases on such matters discussed - Tribunal finding that acceptable development criteria had been applied where possible in an attempt to provide a uniform streetscape - Town planning scheme mandated regard to such streetscape - Greater setbacks would undermine planning decisions and the planning framework - No reason found to vary roof finish requirement - Application for review dismissed - Decisions under review affirmed
Legislation:
Town of Victoria Park Town Planning Scheme No 1, cl 7, cl 20, cl 21, cl 36(5), cl 38
Residential Design Codes of Western Australia (2008), Pt 5
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Mr D Caddy (Representative)
Respondent: Mr R Cruickshank (Representative)
Solicitors:
Applicant: TPG Town Planning & Urban Design (Town Planners)
Respondent: Town of Victoria Park
Case(s) referred to in decision(s):
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Forrest and Town of Cottesloe [2005] WASAT 311
Hopkin and Shire of SerpentineJarrahdale [2006] WASAT 317; (2006) 46 SR (WA) 84
Keating and City of Nedlands [2006] WASAT 329
Sweetland and Town of Cambridge [2005] WASAT 278
Willicombe and City of Gosnells [2006] WASAT 13; (2006) 41 SR (WA) 283
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review concerned a proposed development of land abutting a right of way. The applicant, Mr Richard Snedden, was granted conditional approval for a two storey house to be erected at the rear of an existing weatherboard house in Westminster Street, East Victoria Park.
He then sought to move the whole development back a further 2.5 metres and to change the approved roof finish. The respondent Town of Victoria Park refused his second application, which led to this review in the State Administrative Tribunal.
At issue was the approach of the respondent Town in their requirement for minimum setbacks, consequently leading to 'forward development' in rights of way. A major aim of such development goals was to promote, in effect, significant 'interaction' between developments and rights of way, which would also lead to a uniform streetscape. Increased surveillance of activities in rights of way was an associated objective.
The source of such standards was said to be found in the acceptable development criteria of a local planning policy, an instrument that was mandated to apply to planning decisions under the Town of Victoria Park Town Planning Scheme No 1. The Tribunal discussed the flexibility that was generally needed to be applied as regards such criteria, given that acceptable development criteria are only one way of meeting prescribed performance criteria.
The Tribunal discussed other Tribunal decisions on this issue and commented upon the sometimes close or useful relationship between acceptable development criteria and its associated performance criteria. However, the Tribunal concluded here that, in any event, the local acceptable development criteria had been, where possible, applied to developments such as this in rights of way. A recognisable streetscape had therefore emerged. The result of such decisions could not be said to be a 'planning wrong' requiring correction even if they had emerged out of the relatively inflexible application of the acceptable development criteria by the respondent Town.
Here, the Tribunal found that Mr Snedden's proposals would, if approved, lead to development that was inconsistent with that streetscape and undermine the respondent's planning goals.
The Tribunal also saw no reason to interfere with the respondent Town's decision made on planning grounds to require a Zincalume finish to the roof, the applicant admitting in any event that there was 'very little difference' between the two finishes.
The application for review was therefore dismissed and the decisions under review were affirmed.
Introduction
In February 2008, the Town of Victoria Park (respondent) conditionally approved a development application for the construction of a new dwelling on land at the rear of a property in Westminster Street, Victoria Park. The property abuts a right of way.
The respondent assessed the proposed development against a local planning policy and permitted several socalled 'variations' (or departures) from the acceptable development criteria in the policy. The aim of the respondent was to minimise setbacks in developments abutting the right of way. Later, in March 2008, the applicant, Mr Snedden, sought to move the whole development back a further 2.5 metres and to change the finish of his roof from Zincalume to 'Shale Grey'.
In May 2008, the respondent refused to accede to these requests, and the applicant then sought a review of those decisions in this Tribunal. The review was conducted on the documents, but with a view of the subject land and its immediate environs in the presence of the parties and their advisers.
The Tribunal has decided the review in the respondent's favour for the reasons given below. The review proceeds firstly to consider the main issue of the further setback requested by the applicant.
The subject land and its context
The following description of the subject land and its immediate surrounds is common ground and is largely taken from the witness statement of Mr R Cruickshank, who is the respondent's Manager of Planning Services. Some additional noncontroversial matters have been added to this description of the subject land, and these are taken from Mr D Caddy's witness statement; Mr Caddy is the applicant's expert planning witness:
1)The subject land has an area of approximately 721 square metres. The land is currently occupied by a single storey weatherboard and corrugated iron dwelling located towards the Westminster Street frontage, with there being vacant land between the rear of the existing dwelling and a rear right of way.
2)This is where the proposed development (a two storey dwelling) will be built.
3)The subject land comprises Lot 22 (No 31) Westminster Street, East Victoria Park. The frontage to Westminster Street is 12.19 metres. It is located in the 'Weatherboard Precinct' and zoned 'Residential R30'.
4)As part of a proposed subdivision, a pedestrian access leg is to be provided down the southwestern side of the existing dwelling in order to provide access between Westminster Street and the proposed dwelling for access by or in relation to visitors, rubbish collection and public utilities.
5)A right of way with a width of 5.03 metres is located at the rear of the subject lot and is available for use by the subject lot.
6)The right of way is currently paved and is intended to remain open as identified in respondent's Strategy Plan for RightofWays.
7)The right of way, which runs from Berwick Street through to the rear of various commercial and entertainment uses abutting the eastern boundary of the relevant precinct along Albany Highway, is approximately 380 metres long.
8)A significant amount of infill development has already occurred adjacent to the right of way including new dwellings that both face and gain access from the right of way. About 56 properties abut the right of way, and of these, about 24 have been so developed.
9)With respect to those lots located on both sides of the right of way that have not as yet been developed to their maximum development potential, all of these lots have the potential to accommodate an additional dwelling, based upon the applicable residential density coding and prevailing lot sizes.
10)There is an existing tree located in the western corner of the subject land.
The existing approved development
As has been mentioned, this review arises out of the respondent Town's refusal to, in effect, vary a development approval in respect of a further 2.5 metre overall setback for the development. The respondent approved the original development on 5 February 2008. It is necessary to set out in some detail what that original approval permitted:
1)The development comprised the construction of a two storey grouped dwelling on the vacant portion of land at the rear of the existing dwelling. The proposed dwelling fronts the right of way and has vehicular access from the right of way. (As has been mentioned, a pedestrian access leg is proposed between the dwelling and Westminster Street down the side of the existing dwelling.)
2)The design, to date, incorporates a double garage accessed from the right of way with the front door of the dwelling being located on the opposite side and well set back behind the front of the garage. Twothirds of the double garage sits forward of the front door. An entry porch is located forward of the front door. There are no habitable room windows on the ground floor that face the right of way.
3)On the upper floor, there is a balcony (accessed from the master bedroom) located above a portion of the garage. Other than the master bedroom windows, there are no other habitable room windows on the upper floor that face the right of way.
4)The approved development, to date, includes the following setbacks from the centreline of the right of way:
Ground floor
Garage 4.0 metres;
Porch 6.0 metres;
Foyer 9.3 metres.
Upper floor
Balcony 6.0 metres;
Master bedroom (and remainder of the upper floor) 8.0 metres.
Performance criteria 'variations' sought by applicant
According to Mr Cruickshank, the acceptable development provisions of the relevant part of the planning framework (set out in detail below) were met by the applicant in respect of the first approval, except as to the following items:
(a)no 'habitable room at ground floor level at a 6.0 metre setback from the centreline of the right of way' was provided;
(b)the remainder of the façade of the dwelling at ground floor level was set back 'in excess of the 7.0 metre maximum';
(c)there was no habitable room windows 'at ground floor level facing the rightofway'; and
(d)the upper floor balcony was set back 6.0 metres in lieu of a minimum of 7.0 metres from the centreline of the right of way.
Mr Caddy expresses the situation slightly differently, saying:
The application sought certain variations … in that;
•the proposal did not provide a ground floor habitable room whereas [the planning framework] requires a ground floor habitable room at a setback of 6.0 metres from the centreline of the rightofway; and,
•a 6.0 metre setback from the centreline of the rightofway to the upper floor balcony was proposed in lieu of the required minimum setback of 7.0 metres from the centerline [sic] of the rightofway.
Whichever description is preferred, it is common ground that the respondent approved these 'variations'. That is to say, the respondent must be taken to have been satisfied that the relevant corresponding performance criteria measured against certain objectives (see below) were met by planning or design arguments advanced at that time by the applicant or his then agent.
In any event, Mr Cruickshank submits that two of the main reasons for permitting a 'variation' as originally sought were as follows:
A key consideration in Council's decision to grant approval for the Approved Development, was that the upper floor balcony, being at a 6.0 metre setback from the centreline of the right-of-way, would provide opportunities for surveillance of the right-of-way. A further consideration was that the increased setback from the right-of-way would enable the retention of the existing [gum tree, originally thought to be a karri tree] in the western corner of the site.
Condition No. 1 of the Approved Development is 'Retention of the karri tree indicated in red on the approved plans'. This condition was imposed based upon the landowner['s] intention to retain the tree and as this [sic] formed part of the rationale for Council agreeing to the setback variations for the Approved Development.
Further design modifications sought
In March 2008, the applicant sought to modify his approved development. Mr Caddy describes this further application as follows (emphasis added):
The modified plans did not propose to alter the design of the dwelling at all but to simply set back the entire facade of the dwelling an additional 2.5 metres such that the resultant setbacks of the dwelling facade to the centreline of the [rightofway] would be;
•Garage: 6.71 metres
•Porch: 8.5 metres
•[Entrance foyer]: 10.79 metres
•First floor balcony 8.5 metres
•Remainder of the upper floor [to be] setback 10.5 metres.
In summary, the arguments advanced by the applicant for the further setback, at that time, were as follows:
•[surveillance] the regulatory aim of community safety, through surveillance from the dwelling to the right of way and vice versa, had already 'been achieved by the first floor balcony on the dwelling';
•[parking and safety] one of the justifications put forward for the changes included the additional space that would be available for a car bay on the lot having regard to the lack of parking available for visitors (due 'to the location of the property [close] to nearby adjoining commercial uses and a Hotel, all parking bays along the street and in any available nearby car parks are utilised by the hotel, leaving no parking available for friends and family who visit'); relatedly, the issue of safety for visitors 'who will be required to park a long distance from the home';
•[cumulative effect on parking] the requirement for reduced setbacks generally in the right of way would 'further exacerbate parking issues in the area with an increasing number of developments being undertaken along [right of ways], with no visitor parking spaces [being] provided';
•[preservation of the existing tree on site] by locating the dwelling 'further away from the tree, additional room for the growth of the tree [would be] provided, without the need for constant trimming which would be required if the home was set back [2 metres] from the boundary';
•[design improvement] that the design of the dwelling as proposed, 'clearly demonstrate[d] articulation with the right of way, particularly with the proposed façade including segments of small walls which have been staggered with variations in building materials providing interest to the elevation'.
The applicant produced a number of detailed photographs taken in September 2008 that purport to show the pressures on parking caused by the existing demand on both the right of way and on Westminster Street.
Mr Cruickshank's response to these and further arguments is set out below.
On 20 May 2008, the respondent refused the further application for the following formal reasons, so far as presently relevant:
Noncompliance with Town of Victoria Park Local Planning Policy Streetscape Clause 3.2.1 A1.3 'Secondary Streets RightsofWay' (a) and (d) as a habitable room with a window is not provided at ground level, set back 6.0 metres from the centreline of the right-of-way and the remainder of the ground floor is not set back a maximum of 7.0 from the centreline of the rightofway. As a result, the proposed setbacks are inconsistent with the building setbacks previously approved and established along the rightofway.
The planning framework
In this review, the Tribunal has had regard to the following instruments:
•Town of Victoria Park Town Planning Scheme No 1 (TPS 1), particularly cl 7, cl 20 and cl 21 (compliance with TPS 1 text, plans, policies and the Residential Design Codes); cl 36(5) (matters to which regard must be had in determining planning applications); and cl 38 of TPS 1 (dealing with certain 'noncomplying' applications);
•The Residential Design Codes as currently in force (Residential Design Codes of Western Australia (2008)) (RCodes), particularly Pt 5 which permits a local government to 'vary or replace' certain acceptable development provisions of the RCodes;
•Local Planning Policy - Streetscape (2005) (LPPS), particularly cl 3.2.1 ('Secondary Streets - Rights of Way') applicable by reason of the preceding provisions of the RCodes;
•Western Australian Planning (WAPC) Bulletin No 33, RightsofWay or Laneways in Established Areas Guidelines (PB 33), particularly at cl 5.7 ('Surveillance of rightsofway').
Turning first to the subsidiary instruments, cl 5.7 of PB 33 says that,
[b]uilding design which allows for the overlooking of rightsofway from facing buildings should be encouraged. Potential for surveillance from windows provides greater security for the users of the rightsofway and adjacent properties.
See also cl 4 of PB 33 ('… contributes to personal safety through surveillance.') Mr Cruickshank also suggests that 'some principles' of the WAPC Designing Out Crime Planning Guidelines (2006) (DOCPG) 'are incorporated into' LPPS. On the other hand, Mr Caddy sought to derive considerable comfort from the alleged compliance with the DOCPG, as is set out below.
Next, and importantly, under TPS 1, one matter expressly identified as a factor that the decisionmaker is to have regard to under cl 36(5) of TPS 1 when making planning decisions is (emphasis added):
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
It is necessary to reproduce parts of cl 3.2.1 of LPPS in full. First, I will set out the general objective of the clause and then those provisions dealing with the performance criteria. The acceptable development criteria are then set out although, like the RCodes, the text of the latter actually appears in apparent juxtaposition to the former in the original instrument (emphasis added):
STREETSCAPE REQUIREMENTS
OBJECTIVE
To contribute towards attractive streetscapes and security for occupants and passersby, ensure adequate privacy and open space for occupants and provide an attractive setting for buildings.
APPLICATION [not reproduced]
…
3.2.1Setback of Buildings Generally
[Performance Criteria]
P1New development should meet these criteria:
Buildings set back an appropriate distance to ensure they:
•contribute to the desired streetscape;
•provide adequate privacy and open space for dwellings;
•allow safety clearances for easements for essential service corridors; and
•promote the creation of new streetscapes environments through the use of existing rightsofway.
•[p]rotect residential amenity from disturbance from nonresidential development abutting a rightofway and provide for safety of residential development and surveillance of the right-of-way.
[Acceptable Development]
Note: Unless the context indicates otherwise, references to 'street' in this [design] element include any communal street, private street, right-of-way or other shared access way that provides the principal frontage to a dwelling but does not include an access leg to a single battleaxe lot.
A1With [certain specified exceptions not presently relevant] buildings other than garages and carports in all areas zoned 'Residential' to be set back as follow[s]:
A1.1Primary Streets [not relevant]
A1.2Secondary Streets (Excluding RightsofWay and Communal Streets) [not relevant]
A1.3Secondary Streets - RightsofWay
i.Where the opportunity exists to create a streetscape by facing the dwelling onto and by providing access from the rightofway, the following setback shall apply:
a)At least one habitable room of the ground floor of the dwelling shall be setback at 6.0 metres from the centreline of the right-of-way. A maximum setback of 7.0 metres applies to the remainder of the ground floor of the dwelling.
b)An entry portico or verandah open on at least two sides can be located within the front setback area with a minimum setback of 4.0 metres from the centreline of the right-of-way.
c)Where a courtyard is located within the front setback area between the dwelling and the right-of-way entire ground floor of the dwelling may be setback a maximum of 7.0 metres. Locating a courtyard within the front setback area is acceptable only under following circumstances:
(i)there is no opportunity to provide for a north facing outdoor living area behind the street setback area; and
(ii)there is no roof cover over the outdoor living area other than a verandah forming part of the dwelling. [Illustrative diagram not reproduced.]
d)The second storey portion of a two storey dwelling or upper floor addition to an existing dwelling shall be setback a minimum of 7.0 metres from the centreline of the rightofway. [Illustrative diagram not reproduced.]
ii.Where a residential property faces a rightofway abutting non-residential zoned land [not relevant].
iii.Where a rightofway is not being used for access as the lot has previously been created through a battleaxe subdivision [not relevant].
iv.Where a rightofway is not proposed to be used for access [not relevant].
v.New dwellings on corner lots or lots that have been created as a result of the subdivision of an original corner lot [not relevant].
vi.Where a portion of the right-of-way at the rear of the lot has been closed [not relevant].
vii.Where residential development is to abut a rightofway that interfaces with Non Residential zoned land and/or Non Residential uses [not relevant].
A1.4Secondary Streets - Communal Streets [not relevant].
A2Areas Designated in Policy 3.12 [not relevant].
Relationship between performance criteria and acceptable development criteria
Much of Mr Cruickshank's evidence was coloured by an understandable reliance upon the application of the acceptable development criteria set out above as fixing with reasonable certainty and precision the desired streetscape, thus achieving the stated goal of, for example, adequate surveillance of the right of way.
Mr Cruickshank therefore says, for example, that the already approved development 'involves significant variations to the requirements of [LPPS], by virtue of the increased building setback from the right of way at ground floor level and there being no habitable room windows at ground level'.
However, we are reminded by such cases as Sweetland and Town of Cambridge [2005] WASAT 278 (Sweetland) and Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 (cf Willicombe and City of Gosnells [2006] WASAT 13; (2006) 41 SR (WA) 283 and Keating and City of Nedlands [2006] WASAT 329) that the acceptable development provisions of the RCodes (and any local equivalent) are only one way of achieving the objective of the relevant element. That objective can also be met by satisfaction of the performance criteria. In Sweetland at [36] it was said:
[W]here there is non-compliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective ... [T]he focus should not be [on] the number of variations sought or the extent to which the variations differ from those set out in the Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the [R-Codes].
Notwithstanding these observations, it is clear that the performance criteria and the acceptable development criteria, while in a sense being independent from each another, do in fact have a direct relationship with one another and cannot be compartmentalised as if they were completely separate entities. After all, they flow from the same pen and are issued simultaneously in pursuit of the same object. Moreover, by their very nature, performance criteria tend to be extremely generalised, pithily expressed and 'opentextured' in comparison to the relative minutiae found, as here, in the accompanying acceptable development criteria. In Forrest and Town of Cottesloe [2005] WASAT 311, the following observation was made concerning the RCodes (as previously in force), at [38]:
Although these terms [certain terms dealing with aged care needs, found in the performance criteria] are not defined, guidance as to their meaning and effect is provided by the acceptable development provision in par A2 and by the explanatory text. In this regard, cl 1.1.3 of the Codes states that '[i]n preparing and assessing applications where Performance Criteria are invoked, the explanatory text and the Acceptable Development provisions will together provide useful guidance' (page 4). Similarly, cl 1.5.2 states that the acceptable development provisions in the Codes 'perform a dual role, firstly by providing a straightforward pathway to assessment and approval, and secondly by providing guidance as to the level of response to a Performance Criterion that might be acceptable' (page 13).
The 2008 RCodes' Explanatory Guidelines (Pt 1, at 4) now caution as follows (emphasis added):
Given that the acceptable development provisions illustrate only one way of satisfactorily meeting the corresponding performance criterion, the use of an acceptable development provision as a yardstick or evaluation standard during a performance criteria assessment is generally not appropriate.
Nevertheless, it is only natural to assume that such detail as may be found in the acceptable development criteria has a rational basis for meeting the performance criteria, and is at least indicative, perhaps in some cases strongly so, of a desirable standard. That standard should inform the debate; it might even be considered as a possible starting point in any consideration of what is alternatively produced in alleged satisfaction of the performance criteria. Here, these points are illustrated by LPPS itself where, for example, in its introductory discussion (at 7) it talks of '[t]he modified Acceptable Development provisions' in LPPS encouraging a particular form of development in right of ways 'by requiring' adherence to certain prescribed matters. Of course, such matters may perhaps be more apparent at the local level.
The full extent of the relationship between performance criteria and acceptable development criteria remains to be finally and authoritatively determined as a matter of planning principle and, even then, might vary significantly from case to case. For the moment, however, it is sufficient to remind ourselves that the goal of meeting performance criteria cannot be adjudged, it seems, solely in the sense of the degree of departure or variation from the acceptable development criteria.
Having said this, I recognise the strength of the opposing argument that permitting any reference at all to such matters (for example, the degree of departure from the acceptable development criteria) might well tend to both undermine the performancebased intent of the RCodes and to lead to a misinterpretation of the function of acceptable development criteria. Whether these fears which are valid are met by a denial of the connection advanced above (and, say, a consequential rejection of the tender of any evidence seeking to do the same), or are to be borne uppermost in mind whenever the issue is presented, will, no doubt, be determined in an appropriate future case.
But however all this may be, it does not address in any event the practical situation where if as a matter of established fact the respondent has, by accident or design (and whether, upon reflection, 'correctly' or not), imposed a de facto streetscape standard by a series of approvals closely, perhaps slavishly, following the acceptable development criteria, then that fact of actual resulting streetscape might lead to future approvals which are consistent with that situation.
This is because, in effect, the planning framework may mandate the same by, as here, requiring attention to existing streetscape. Of course, it is a premise of this argument that such a 'standard' (if this indeed is the correct term), being based upon acceptable development criteria, cannot be considered as akin to the repetition of a 'planning wrong' that somehow needs to be corrected.
In conclusion, I should note that, as I understand the respondent's position, it would not accept that it has in fact acted 'slavishly' in pursuit of the acceptable development criteria as the 'variations' already permitted in this and other cases could attest to.
The respondent's case
The central arguments of the respondent are captured in the following passages from Mr Cruickshank's main statement of expert evidence to the Tribunal (emphasis added):
I have inspected the existing development that has occurred along the interface with the right-of-way, and have noted that a reasonable amount of infill development has already occurred. In my view the emerging streetscape that is being developed along the rightofway is characterised by dwellings which predominantly face the rightofway and are located in close proximity to the right-of-way.
Furthermore I have noted that there are further development opportunities for other properties adjacent to the rightofway.
I understand that with the exception of the development at No. 29A Westminster Street, all developments which adjoin the rightofway which have been approved by Council since the introduction of [a previous and similar Council Policy in 2001].
I am … of the opinion that the increase in the setback of the building from the right-of-way by a further 2.5 metres as part of the Refused Development [the subject of this review], results in a poor built form outcome for the existing and future right-of-way streetscape, as a result of the building setback being inconsistent with that desired, the poor interaction with the right-of-way at ground level and the lack of visual surveillance between the dwelling and the right-of-way, particularly at ground floor level.
I consider that the proposed setbacks of the dwelling at ground floor level is inconsistent with the setbacks from the right-of-way that has developed and will continue to develop as further development occurs adjacent to the right-of-way.
I acknowledge that the existing dwellings facing the rightofway on either side of the [subject land], being Nos 29A and 33A Westminster Street, are noncompliant with the [acceptable development criteria] setback requirements of the [LPPS]. However this is a result of the particular site circumstances of the development at No. 29A Westminster Street [a relocated weatherboard dwelling] … and the development at No. 33A Westminster Street being approved in 1996 prior to the need to obtain planning approval for a Grouped Dwelling and prior to the current setback requirements being adopted.
The setback of the two adjoining developments should not be regarded as a justification for the setbacks of the Refused Development to be accepted, as the circumstances of both of these developments warranted approval of these setbacks. Furthermore, the current setback requirements have been consistently applied since 2001, and are resulting in the emergence of a consistent building form and setback to the rightofway.
I contend that approval of the proposed setback giving strong weight to the setbacks of the two adjoining dwellings would be short-sighted and would not give sufficient attention to the consistency in the application of the [two written policies by the respondent] since 2001, or the significant extent of redevelopment that is yet to occur adjacent to the rightofway which will be at a compliant setback.
I … believe that there have been no compelling arguments put forward by the Applicant or the landowner as to why an increase in the setback of the dwelling from the right-of-way by a further 2.5 metres from the variation previously approved by Council, should be permitted, or complies with the intent of Council's Policy.
I have read the correspondence from the applicant to the Town dated received 31 March 2008 which provides justification for the further increased setback including:
•the ability to retain a karri tree located in the front setback area that was in close proximity to the dwelling; and
•the ability to provide a visitor['s] parking bay on-site in the front setback area.
Mr Cruickshank goes on to make further submissions in his main and a supplementary witness statement, which, in summary, are as follows:
1.It is probable, based upon expert advice from the respondent's parks co-ordinator, that the tree on site is a 'common gum tree'. In any event, the tree was accommodated in the original proposal and could be possibly maintained in the existing front setback. Alternatively, and if necessary, primacy must be given to streetscape values in the right of way as a whole over the fate of this (or any other individual) tree. (Mr Caddy subsequently submitted that the tree was a 'River Red Gum', based upon his own expert advice.)
2.It is unlikely that the increased setback area would be used for private recreation (another ground put forward by the applicant) given such matters as its lack of privacy and its proposed use as a vehicle bay.
3.Further, or in the alternative, the ceding of a future 0.5 metres of land for right of way widening would be likely to result in such a car bay being 'unachievable'. However, according to the respondent's own experts this may be the position even without taking into account the potential for right of way widening.
4.Parking off site for visitors in a case such as this is 'extremely common' and is contemplated by subsidiary elements of the planning framework. Further, the respondent is examining ways of increasing parking availability in the vicinity of the subject land.
5.Amenity expectations for those living adjacent to rightofways are quite different as a matter of established fact, and this situation is reflected in the planning framework and the resulting streetscape.
The respondent also produced a table and some photographs of the subject land and its immediate environs that, if accepted, tend to support Mr Cruickshank's evidence on the point concerning 'the emergence of a consistent building form and setback to the right of way' particularly as regards forward development.
Applicant's case
In summary, Mr Caddy offers the following opinions:
1.The modified design meets DOCPG in its 'micro' principle relating to sightlines and its general provisions at part 5.5 (design, sightlines and lighting).
2.Relatedly, the modified design does have elements in its front upper level windows and balcony that promote surveillance, and is otherwise a 'traditional, two storey residence'.
3.Because of the tree's existing and future contribution to streetscape and amenity, its retention should not be regarded as less important than the respondent's emphasis on reduced setbacks and forward development.
4.The R-Codes' promotion of reduced setbacks in rights of way has no necessary connection with surveillance goals.
5.Otherwise, the R-Codes can be used in this review, as LPPS is, in effect, only a policy. In this respect, there should not be 'blind adherence' to it by the decisionmaker.
6.The discretionary aspects of the application of 'planning policies' are illustrated by the need to have regard to this development in the context of its two neighbouring developments which have setbacks 'further than the distances recommended' in LPPS. The circumstances of these developments are not as important as their actual form.
7.Further, LPPS, in the pursuit of its surveillance objective, ought not to be applied where it has or might have a detrimental effect on residents' privacy or amenity (for example, less vegetation in front setbacks illustrated here by the possibility of the need to eventually remove the applicant's gum tree).
Mr Snedden, in his own evidence to the Tribunal, sought to show at some length why LPPS was 'flawed and not contributing to the improvement or enjoyment of the rightofway'. In fact, he attempted to demonstrate why the application of LPPS had already led to or would lead to 'the slow degradation of [the right of way's] streetscape, residential privacy and residential security'. He submitted that LPPS 'should be set aside'. To the extent that Mr Caddy apparently shares, as an expert, some of these concerns, these matters are summarised above. As observations of a non-expert they are, with respect, matters to be addressed by Mr Snedden to the respondent in its political or policy-making capacity. For the reasons given below, it is the duty of the Tribunal to comply with and to apply LPPS (in the manner and within the limits discussed below), not to judge its worth in the way that Mr Snedden invites the Tribunal so to do. Thus Mr Snedden's observations, while made sincerely and with great fortitude, are essentially irrelevant to this review.
Roof colour
Before considering the gravamen of the applicant's case, I will deal with the secondary aspect of the decision under review, namely the imposition by the respondent of a Zincalume roof finish.
The development was originally approved based on the roof colour being Zincalume rather than the applicant's proposal of 'Smooth Cream' colorbond. Mr Caddy submits that:
The Applicant agreed to this amendment and the previous planning approval was approved with Zincalume as the roof colour. The modified plans propose to revert back to the use of colorbond and the shade of 'Shale Grey' as in the opinion of the Applicant, there is very little difference between Zincalume and Shale Grey as the Shale Grey does not seem as harsh as the uncoloured Zincalume finish.
The Tribunal has been provided with physical samples of the two alternative roof finishes. It is true to say that the two finishes bear a resemblance to one another as, speaking generally, they represent alternative shades of grey. The regulation of Zincalume finishes (even their prohibition in relevant cases) has been recognised by this Tribunal as a legitimate planning objective: see, for example, Hopkin and Shire of SerpentineJarrahdale [2006] WASAT 317; (2006) 46 SR (WA) 84. It follows that the consistent promotion of such finishes in relevant precincts (as is the case here), especially given their historical relevance to this State's building history, is similarly permissible.
Given this background, there is no basis for the Tribunal to interfere with the legitimate exercise of discretion by the respondent especially where, on the applicant's own case, there is in any event 'very little difference' between the two shades of grey.
Discussion of the main aspect of the case and findings
The RCodes are, under cl 7 of TPS 1, 'to be read as part of' TPS 1 and development 'shall conform to the provisions of' the R-Codes. These provisions extend to any policy, relevantly here LPPS, deriving its authority from the RCodes and TPS 1. However, LPPS is the dominant policy instrument in this review and resort to the R-Codes or the accompanying Explanatory Guidelines is of doubtful relevance and of little assistance.
Because of its status, any attack on the application or effect of LPPS cannot succeed where, as here, it is capable of application to the subject land, intended so to apply and compliance with it (including, of course, any latitude offered by its own internal discretionary provisions) is mandated by operation of law. And, although opinions may differ as to what is a desirable planning outcome to be achieved by any planning instrument, it could not be said that with respect to LPPS its goals or prescriptions are inconsistent with wellestablished planning principles. There is no basis therefore in either law or policy for disregarding, rewriting (assuming that were possible) or readingdown LPPS. Similarly, to the extent that, if any, LPPS can be 'waived' if otherwise found to be applicable, as Mr Snedden requests should be done a position which I doubt is open to the Tribunal in any event there is no legitimate basis for doing so in this case.
At least since the introduction of LPPS in 2005 (and probably before then under the predecessor policy in place), the material available to the Tribunal suggests that the respondent has, where possible, consistently applied setback requirements which produce a discernible pattern of forward development in relation to the subject adjacent right of way, when that lane is considered as a whole. This pattern is mainly the result of the consistent application of the whole or substantial parts of standards found in the acceptable development provisions of LPPS. Thus, Mr Cruickshank's evidence on these points ought to be accepted. Further, the Tribunal accepts Mr Cruickshank's expert opinion on the rationale for this situation. Nothing Mr Caddy offered, with respect, materially weakened Mr Cruickshank's opinions on these matters.
The result of such consistency has led to Mr Snedden expressing his concerns in some detail, as is referred to above. But his criticisms are, as is explained above, and with respect, simply not relevant to the present task of the Tribunal.
Further, in the Tribunal's view, no planning principle is offended by the actions of the respondent even if such decisions have been wholly or partly made with a focus upon the acceptable development criteria of LPPS. In particular, the application of those provisions produces a rational planning outcome that tends to promote, amongst other things, objectives in relation to surveillance of the right of way. These objectives are reflected in the planning framework: see performance criteria P1, set out above. Thus, a discernible streetscape has been produced, a result which could not be said to offend any planning principle. The streetscape so produced must be taken into account in making future decisions under the planning framework.
It needs perhaps to be emphasised that such findings, in the context of the present discussion, necessarily have the effect of substantially weakening the applicant's case.
The development application the subject of this review would, if approved, have the practical effect of undermining the stance taken by the respondent and consequently would impair or detract from the results or outcomes referred to immediately above. There is no basis upon any established planning ground for the Tribunal to interfere with an outcome adverse to the applicant that has been reached upon the basis of such reasoning or logic.
Thus, there is no basis upon which the Tribunal can or should interfere with the respondent's decisions. They are, in the Tribunal's view, and based upon the material before the Tribunal, the correct and preferable decisions. Therefore, the application for review will be dismissed.
Orders
For the reasons given above, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decisions of the respondent under review are affirmed.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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