Stirbinskis and Town Of Cambridge
[2007] WASAT 1
•15 JANUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: STIRBINSKIS and TOWN OF CAMBRIDGE [2007] WASAT 1
MEMBER: MR J JORDAN (MEMBER)
HEARD: 18 OCTOBER 2006
DELIVERED : 15 JANUARY 2007
FILE NO/S: DR 273 of 2006
BETWEEN: JASON STIRBINSKIS
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development refusal - Application for retrospective approval of garage in front setback - Existing carport converted to garage by addition of tilting door - Screen wall on front boundary - Application of policy - Neighbouring development - Streetscape - Local amenity - Effect of precedents
Legislation:
Metropolitan Region Scheme
Residential Design Codes of Western Australia 2002, cl 2.6, cl 3.2.1 A1(ii)
Town of Cambridge Residential Design Guidelines, cl 1.4, c. 2.1, cl 2.1.1, cl A.1.3, cl A.1.6, cl A16(i), cl A1.6.1, cl A.1.8
Town of Cambridge Town Planning Scheme No 1, cl 18, cl 48, Sch 1
Result:
The application for review be refused.
The refusal of the respondent be affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Bracone (as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Town of Cambridge
Case(s) referred to in decision(s):
Sumner Nominees Pty Ltd and the Swan River Trust [2006] WASAT 168
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Jason Stirbinskis applied for review of the Town of Cambridge's refusal to grant retrospective development approval for a garage in the front setback of a group dwelling in Herdsman Parade, Wembley. The issues raised concerned the set back requirements and planning objectives of the Town, the impact of the proposal on the local amenity and the precedent that would be set by an approval of the development.
The Tribunal concluded that the garage door would be in conflict with the objectives of the Town's Residential Design Guidelines, would have an impact on the expectations for the amenity of the locality and would raise concerns about precedent for development in front setbacks in similar circumstances. The application was refused.
Introduction
Number 138A Herdsman Parade, Wembley (subject land) is the front lot of a two lot survey strata subdivision on the southern side of what is a local distributor road. Car parking for the subject land is in a carport constructed in the front setback in 2004. The carport is parallel to the road with pillars set back about one metre from the front boundary. The subject land and the rear battleaxe lot, number 138B, share the same crossover to Herdsman Parade, at the north eastern corner of the subject land. At the crossover is an area of common property, from which vehicles turn right into the carport at the front of the subject land or proceed ahead to the access leg along the eastern boundary to number 138B at the rear. A 1.85 metre high brick fence extends across the 21 metre frontage of the subject land but for a 4 metre wide gap at the crossover.
The development
Mr Jason Stirbinskis (applicant) applied to the Town of Cambridge (respondent, Town or Council) for development approval for improvements to the subject land including a back garden shed and pergola, two gates and a garden wall. The application also included a proposal that there be granted retrospective development approval for a garage door installed on the existing carport in the front setback.
The respondent advised it was not prepared to grant approval, but would give favourable consideration if various amendments were made to the application. The applicant amended the plans, but did not delete the garage door as suggested.
The respondent refused the garage door for the reasons:
"(a)non‑compliance with cl (a)(1.3)(i) of the Residential Design Guidelines with regard to front setback requirements for a garage; and
(b)in view of (a) above, it is considered that the proposal would be contrary to the amenity of the area and establish an undesirable precedent for future development."
The Council's advice to the landowner was that it would be prepared to give favourable consideration to amended plans incorporating "a garage door being constructed of a visually permeable material such as open‑grille security doors."
Planning Controls
The subject land is zoned residential R20 under the respondent's Town Planning Scheme No 1 (TPS 1) and urban under the Metropolitan Region Scheme (MRS). The subject land is in the respondent's precinct P 4 Wembley.
All lots on the south side of Herdsman Parade in the locality are zoned residential R20. On the northern side of Herdsman Parade opposite the subject land are ten lots zoned "residential/commercial".
Clause 18 of TPS 1 requires that development be in accordance with the requirements of TPS 1, the Town's planning policies and the Residential Design Codes of Western Australia 2002 (Codes). Clause 2.6 of the Codes provides that the policies may be adopted in addition to the Codes and a town planning scheme, including for street set backs and the siting of carports and garages. Clause 48 of TPS 1 provides the mechanism for the respondent adopting such policies.
In 1998 the respondent adopted as a policy its Residential Design Guidelines (Guidelines). Clause 1.4 of the Guidelines sets out objectives for development, including:
"Development which continues the existing desirable streetscapes, with visually open setback areas punctuated by shade trees and with minimum of vehicle crossovers."
Clause 2.1 is headed "Streetscape" and sets out as the aims:
"1to ensure consistency of street setbacks within each precinct, maintaining the differences in character between precincts.
2to ensure that garages, carports and other developments do not detract from the dominant elements of houses and landscape within the streetscape.
3to ensure that houses are not obscured from view from the street and maintain the openness of streetscapes, enhancing the pedestrian environment.
4to encourage the retention and enhancement of natural landform and vegetation within the residential environment."
Clause 2.1.1 of the Guidelines is concerned with street setbacks and sets out as Performance Criteria to be met:
"P 1
•The setback is compatible with the established line and pattern of setbacks in the street;
•A reduction in the setback would not adversely impact on the pattern of development in the street because of the position, shape or topography of the lot; and
•Visual separation is maintained between buildings and adjoining properties."
The Guidelines set out acceptable development standards which are deemed to meet the performance criteria for buildings, including garages. Clause A.1.3 refers to R 20 coded land in Wembley and states that:
"(i)The minimum setback from a primary street boundary to buildings (including garages but excluding carports) is 6.0 metres without provision for averaging."
Clause A1.6 and cl A1.8 set out the acceptable development standards for carports. In this instance the carport in the front setback was previously approved and has been constructed. Clause A1.6(i) describes as acceptable:
"A carport that is unenclosed except to the extent it abuts a dwelling on one side and being without a door unless visually permeable."
The Codes at cl 3.2.1 A1 (ii), set out certain forms of acceptable development. In areas coded R15 or higher, where a grouped dwelling has its main frontage to a secondary street or a single house results from subdivision of a corner lot and has its frontage to the original secondary street, the street setback may be reduced to 2.5 metres or to 1.5 metres to a porch, verandah or balcony.
At Sch 1 of TPS 1 are set out definitions, including:
"amenity: means the expectations of those living and working in an area about the quality of their environment including its pleasantness, character, beauty, harmony in the exterior design of buildings, privacy and security."
Discussion
The parties provided submissions and evidence of the development of garages in front setbacks in the locality, on the impact of reduced setbacks on local amenity and on whether a precedent might be set by an approval of the applicant's garage.
The applicant provided photographs of 26 garage doors in nearby streets closer than six metres from the front boundary of the respective lots. These, he said, established a precedent for the relaxation of the Guidelines. The examples provided showed garage doors parallel to wholly residential streets. The submission was that these were an obvious feature and so, even though they were in a minority in each street, they had a much greater impact on local amenity than that of his garage door in the section of Herdsman Parade where it was located. Mr Stirbinskis said that he had chosen these examples to illustrate his point but that there were more in the district. He did not consider any garage doors should be exempted from comparison with his garage door because, whatever the circumstances of their approval, they had an impact on the local streetscape and amenity, whereas the impact of his garage door was trivial.
Mr Bracone, for the respondent, analysed the applicant's list. He advised that nine garages were approved as part of houses built on what were once rear yards of corner lots. These replaced side fences with open frontage to new dwellings. The setbacks to this particular form of development were reduced as provided in the Codes. In most cases the garage door was in line with the front of the house. Three examples were identified as pre‑dating the 1998 adoption of the Guidelines. For the remainder, records could not be found for older examples, some were unauthorised and one was the result of an earlier ministerial appeal approval.
Mr Bracone said that it was the impact of some of these examples that had prompted the respondent to adopt the Guidelines. As to the secondary street frontage of corner lots, the respondent approved such development as it replaced often unsightly lengths of side fence with a new residence with an open front garden. Mr Bracone provided photographs of three carports in setbacks with visually permeable gates and two with no gates at all.
The Tribunal noted the examples of houses built at a reduced front setback on what were previously the rear yards of corner lots and concluded these could be distinguished because the Codes at cl 3.2.1 A1(ii) specifically provide for this form of development. The respondent's decision to allow such development was not seen to provide a basis for ignoring the setback provisions for garages for the remainder of properties within a street.
The Tribunal also noted the examples of garages in front setbacks and that some of these were not attractive. The Tribunal was not provided, however, with evidence of the streetscapes in which the examples photographed were located. The Tribunal has formed the view that examples provided from streets in the wider area do not demonstrate the policy adopted by the respondent is ill‑considered. This conclusion could be drawn if streetscapes were so compromised by exceptions that pursuit of the objectives of the policy should be abandoned, but on the evidence that is not the case.
The parties also focussed on the streetscape in the vicinity of the subject land. The applicant drew attention to the use made of residential/commercial zoned lots over the road and those either side of the subject land between Keene Street and Reserve Street. The respondent also included photographs of the view to further along Herdsman Parade to both the east and the west of the subject land to establish what it considered to constitute the streetscape.
From the submissions and a photograph provided by the respondent, development on the commercial/residential zoned lots opposite the subject land included a house and an office at a residential scale and residential setback. Two lots were identified as vacant and to the east were commercial uses, one being a sign company in an old building with parking and storage at the street frontage. On the south side of Herdsman Parade adjoining to the east of the subject land the photographs showed what was about 40 metres of fibro cement fence painted various colours. In a section of the fence near the subject land were two gates at the rear of Lot 6, which fronts Reserve Street, and a metal garage at about 1.5 metre setback which was the garage at the rear of Lot 7 which fronts Reserve Street on the corner of Herdsman Parade. To the west on the corner of Keene Street was a house fronting Herdsman Parade at standard setback with no front fence and an open front garden.
The applicant emphasised the side fences and shed to the east, the commercial uses over the road and his own 1.8 metre high front boundary wall as setting the immediate streetscape character. He submitted that Herdsman Parade was a busy road.
The respondent acknowledged the unattractive neighbouring uses, but said the adjacent fences were side and rear fences and had to be considered differently when considering existing character and amenity. The respondent referred to the views in each direction along Herdsman Parade which it said generally showed residential development at standard setbacks.
The impression the Tribunal gained from the evidence was that the older commercial uses over the road were an exception to what is otherwise a streetscape of residential scale and appearance. It was Mr Bracone's submission that any new development in the commercial/residential zone, if commercial, would be required to make a positive contribution to the streetscape. Mr Stirbinskis submitted that his development made a positive contribution to the local amenity.
The side fences adjacent to the subject land were unattractive and had an identifiable impact. The applicant's front fence was of similar height, but had the gap at the crossover. The gap provided a break and a view through the vehicle parking area to the front of the house when approaching from the east. The garage door closes that gap and it was considered to make complete the barrier effect of fencing in this section of the street. This was an identifiable impact on the streetscape.
The photographs supported the applicant's contention that the garage door is not visible from directly over the road because it was obscured by a tree and a pillar. The photographs also revealed that from other viewpoints, particularly from the east, the garage door is visible above the front fence providing the appearance of a solid structure in the front setback. The Tribunal has found that the garage door has an impact and this impact doesn't make a positive contribution to the streetscape or enhance the local amenity.
The 1.8 metre front boundary wall on the subject land was approved in 2004. From the submissions received, the Tribunal understood that the respondent has allowed such front fences on busier roads such as Herdsman Parade and Cambridge Street.
The question then arises as to whether such approvals should lead to setback standards being reduced behind a front fence of that type. The applicant was of the view that if there was no detrimental impact on amenity then a reduction in set back should be permitted. Mr Bracone was firmly of the view it should not as a matter of principle. He submitted that the gap between the top of the front fence and carport roof assisted in maintaining the objective of having a degree of openness to the dwelling. He also pointed to another example of a carport in a front setback behind a wall in Cambridge Street and submitted that any approval would provide a precedent for others to apply to convert carports to garages in similar circumstances.
Mr Stirbinskis argued that the door provided security because it screened parked vehicles, the front garden and main outdoor living area. Mr Bracone disagreed, saying that some degree of openness discouraged intruders. Nothing more than opinions were presented to the Tribunal and this did not enable a conclusion to be drawn on the issue. The applicant also emphasised that the garage door would provide privacy. Other lots had a private back yard whereas his equivalent was in the front yard as a result of the survey strata subdivision and the garage door would provide an effective screen. Mr Bracone referred to the reference in Element 3.2 of the Codes to private open space in the front yard of a lot and said the respondent allowed screen walls to accommodate the concern for privacy. The respondent, however, was generally concerned in its guidelines to have fences built that are in part visually permeable, but more importantly, not to allow buildings, including garages, to encroach into the front setback.
From the application sketches and photographs, it is apparent that the garage door would screen from view the applicant's cars and when the cars were not there an area of garden beyond about 6 metres by 6 metres near the front door. It was submitted that the main outdoor recreation area would otherwise be on view, but the sketches showed that most of this would be behind new gates approved for the 1.8 metre high wall separating the subject land from the common property and not visible in any event.
Conclusion
Amenity, as defined in TPS 1, is concerned with expectations of those living and working in the locality. Mr Stirbinskis made his personal views known and says he had asked a neighbour who supported him. His submission was that those living and working in the area would not be affected and his own family's amenity would be greatly enhanced.
Expectation is a looking forward to or a hoping for a particular outcome. The Tribunal is of the view that a guide to what the expectation of those living and working in the area might reasonably be is to be found in the planning controls in place, which were adopted through a public process by the respondent. The locality has a particular amenity as a result of existing development, but the planning controls would give rise to an expectation that the amenity would be at least maintained or most likely enhanced by future development being consistent with the objectives of the planning controls. The objective of the Guidelines is that there be no solid structures, including garages, within the standard front setback of residential lots unless specific circumstances apply, such as when a residence is built in what was once the rear yard of a corner lot.
The Tribunal accepts that there might be circumstances in which a development would have so little impact as to not be in conflict with the objectives of the Guidelines. An exception to the standards could be considered in such circumstances. On considering the evidence and the submissions of the parties, the Tribunal has formed the view, however, that while the garage door is perpendicular to the street, it still has an impact sufficient to be in conflict with the intent of the Guidelines and therefore to have an impact on the expectations for the amenity of the locality. The Tribunal has therefore concluded that it cannot support development of the garage in the front setback.
There has also been raised as an issue whether an approval of the garage would establish an undesirable precedent. It is an established planning principle that each application be treated on its merits. Precedent, however, is not an issue to be entirely ignored when considering a proposed development. Precedent is an issue to be afforded an appropriate amount of weight depending upon the circumstances. To be considered is whether there are aspects of the development which are objectionable and whether there is more than a mere chance or possibility that there may be later undistinguishable applications: Sumner Nominees Pty Ltd and the Swan River Trust [2006] WASAT 168 [51‑53].
In this instance there are aspects of the development that are considered objectionable, as described above, particularly the resulting appearance of a solid structure in the front setback above the fence in front of the house from certain views in the streetscape and the impact this has in conflict with the objectives of the Guidelines. As to the uniqueness of the application, in this locality screening front fencing is allowed on busier roads, strata sub‑division is more than a mere possibility because of the general lot size and the R20 coding and carports in front setbacks are a common feature of such developments. The proposal is different from most of the examples in the photographs provided, but the Tribunal considers that it would be difficult to distinguish this proposal from later applications for the conversion of carports or the development of garages in front setback areas of survey strata lots. It is therefore concluded that in this instance the respondent's concern about precedent is well placed. The Tribunal has therefore concluded that, for this reason, also, it is not prepared to support the application.
Orders
1.The application for review be refused.
2.The refusal of the respondent be affirmed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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