TAFTI and CITY OF SUBIACO
[2012] WASAT 68
•10 APRIL 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TAFTI and CITY OF SUBIACO [2012] WASAT 68
MEMBER: MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 10 APRIL 2012
FILE NO/S: DR 262 of 2011
BETWEEN: LEROY TAFTI
NOOSHIN TAFTI
ApplicantsAND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development application Refusal of single carport in front setback area Site layout prevents location of carport elsewhere onsite Whether, in context of particular streetscape, discretion should be exercised to permit carport Whether applicants required to have two onsite car bays Relevance of cl 28 of City of Subiaco Town Planning Scheme No 4
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 22, cl 23, cl 27(3), cl 27(4), cl 27(4)(b), cl 28, cl 28 (3)(a), cl 28(3)(b)(iii), cl 37, cl 39(3), cl 41(2), cl 70, cl 78, cl 78(8)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010), cl 6.5
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
Applicants: Mr S Allerding (Acting as Agent)
Respondent: Mr J Algeri (Acting as Agent)
Solicitors:
Applicants: Allerding & Associates
Respondent: Algeri Planning & Appeals (Town Planners)
Case(s) referred to in decision(s):
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr and Dr Tafti applied to the State Administrative Tribunal for review of the City of Subiaco's decision refusing planning approval for the construction of a single carport within the front setback area at No 53 Churchill Avenue, Subiaco.
The principal issue that arose for determination in this matter was whether discretion should be exercised to approve a carport that departs from the requirements of the policy framework, which on its face did not support such a carport. In determining this issue, the Tribunal was mindful that Churchill Avenue was not strictly speaking a traditional residential streetscape as the northern side of Churchill Avenue was zoned Commercial Residential under the City of Subiaco Town Planning Scheme No 4 and was characterised by a mixture of building types.
In considering the substantive merits of this particular case in light of the established planning framework and in the context of the surrounding development, the Tribunal found that the proposal did not warrant approval, and as such, the application for review was dismissed and the decision of the respondent affirmed.
Introduction
Mr Leroy Tafti and Dr Nooshin Tafti (applicants) made application to the City of Subiaco (respondent or City) on 1 March 2011 for the construction of a carport within the front setback area at No 53 Churchill Avenue, Subiaco (subject land).
The application was refused by the respondent on 22 July 2011 for the following reasons:
1.The proposal does not comply with Sections 5.0 and 6.1 of the City's Residential Car Parking and Vehicular Access policy with respect to access and location of car parking structures.
2.The proposal does not comply with Section 6.3 of the City's Residential Car Parking and Vehicular Access Policy with respect to front setbacks.
3.The proposal does not comply with Section 5.2.(1)(a) and Section 5.5 of the City's Streetscape Policy with respect to prevailing setbacks, access to and location of car parking structures.
4.The proposal does not meet the requirements of Clause 23(3)(a) and (b)(iii) of the City's Town Planning Scheme No 4 as the proposed development is not consistent with the orderly and proper planning of the locality, the preservation of amenity of the locality or the planning objectives of the zone.
On 1 August 2011, the applicants made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
As part of the proceedings in this matter, the parties engaged in a mediation process facilitated by a Tribunal member, which resulted in additional information being provided and an invitation by the Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), for the respondent to reconsider the reviewable decision. At its meeting in October 2011, the respondent affirmed its previous decision.
Subject land and locality
The following facts were agreed by the parties:
[.]The subject land exists as a single residential lot between Churchill [Avenue] and a rightofway (ROW), Subiaco. The subject land is rectangular in shape and measures approximately 437 [square metres in area].
[.]Existent on the subject land is a single dwelling fronting Churchill Avenue. A single vehicle garage structure exists at the rear of the subject land gaining access from the ROW. The wall and roof to the existing garage structure is set back 1.5 metres from the rear boundary, the steel [gate] to the [sic] secure the vehicle in the garage is set back 3.5 metres from the rear boundary.
[.]At the rear of the lot is also a swimming pool. The pool has been approved by the respondent … and has been constructed as per the building licence and is now full of water. …
[.]The location of the pool (which is approved and existing) and the overall existing layout of the development prevent locating two parking bays with access from the rear laneway in compliance with the acceptable development provision of the Residential Design Codes.
[.]Adjacent to the subject land and on the opposite side of the ROW exist similarly developed residential properties. Properties on the opposite side of Churchill Avenue (near to the subject land) are also used for commercial purposes, consistent with their zoning.
[.]There are fourteen (14) individual properties on the same side and fronting Churchill Avenue as bound by the nearest [ROW] entries east and west of the subject land (not including the subject land). Within this section, three (3) properties gain vehicle access from Churchill [Avenue]. The remaining eleven (11) properties gain or have access from the ROW. From these 11 [properties] it is noted [that] one property has no access from either Churchill Avenue or the ROW …
[.]With regard to existing crossovers and[/]or vehicular access to the front of the lot to the properties on Churchill Avenue, between Thomas Road and [Coglan] Road, the following is provided in relation to properties on the southern side of Churchill Avenue:
a)The property [at] 63 Churchill Avenue contains a grouped dwelling development and has a double crossover with a carport in front of one residence and a carport alongside another residence.
b)The property at 37 Churchill [Avenue] has an existing single crossover and the area between the residence and the front boundary is used for parking of vehicles.
c)The property at 33 Churchill [Avenue] contains a grouped dwelling development. This property has two crossovers. Firstly it has a single crossover adjacent to the western boundary which provides access to a covered parking bay alongside one of the dwellings; secondly there is a central crossover to provide parking to other dwellings in the complex.
d)The property at 21 Churchill Avenue fronts Thomas Street and has vehicle access to Churchill Avenue. This property has a double crossover with a brick double garage with a nil setback to Churchill Avenue, adjacent to the laneway. This property also has a crossover east of the dwelling (between the dwelling and Thomas Street).
[.]In regard to properties on the northern side of Churchill Avenue, the following is provided:
a)The property at 61 Thomas Street (corner Churchill Avenue) has a crossover and parking between the building and Churchill Avenue boundary and has parking under the building with access via the adjacent laneway.
b)The property at 14 Churchill Avenue has a crossover and the front setback area is used for parking.
c)The property at 16 Churchill Avenue has a crossover and the front setback area is used for parking.
d)A double crossover expands between 68 and 70 Churchill Avenue. The property at 70 Churchill Avenue uses the crossover to access car parking in the front setback area. The property at 68 Churchill Avenue has temporarily blocked access between the crossover and the property with planter boxes and does not uses [sic] the front setback for parking.
e)The property at 72 Churchill Avenue has a crossover but there is no parking provided in the front setback area.
[.]The [ROW] to the rear of the [subject land] measures approximately 3 metres in width and vehicle access point needs to be set back into the property in order to allow for sufficient area for manoeuvring.
[.]The prevailing street setback within the section of the street block … is approximately 3.5 metres with a range of street setbacks from 1 [metre] 7 [metres].
[.]The [subject land] is not currently listed on the City of Subiaco's Register of Heritage Places under TPS 4, the Heritage Council of WA Heritage Register (State Heritage Register) or the City's Municipal Inventory of Heritage Places.
[.]The dwelling at the subject land was previously identified by a Street Survey in 2001 as [having] 'Level 2 Significance'. The subject land was removed from the Municipal Inventory in 2003.
[.]In the Street Survey, it was noted that for the properties including the subject land[:]
[i]t is recommended that significant/original fabric should be retained and conserved where possible. The building or place may be extended or adapted; however[,] the original significant building should remain the dominant feature on the site when viewed from the street.
Proposal
The planning application lodged with the respondent includes a number of elements, including a single carport, new landscaping, front fence, mailbox installation and removal of existing vegetation within the front setback area of the subject land. The only element in dispute is the carport.
The proposed carport structure is located forward of the primary building line and in the front setback area of the subject land. It is comprised of four steel posts and a pitch zincalume roof with a gable feature. The carport structure has a nil setback to both the front and eastern side boundary and measures 3.15 metres wide at the street boundary. To accommodate a crossover to the proposed carport, an existing street tree is required to be relocated.
Planning framework
The land on the southern side of Churchill Avenue, which includes the subject land, is zoned Residential with a density coding of R20 under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme), whereas the land on the northern side of Churchill Avenue is zoned Commercial Residential.
Under cl 22 of TPS 4, all development, except as otherwise provided in cl 23 of the Scheme, is required to obtain prior approval of the Council in each case. The only aspects of this application that require development approval are the construction of the single carport and the front fence.
Clause 37 of TPS 4 divides the Scheme Area into precincts and notes that for each precinct there is a planning policy contained in the respondent's policy manual. The subject land is located in the Triangle Planning Precinct. Clause 6.1 of the Triangle Planning Policy states that:
[a]ny change or redevelopment should reflect the scale, character, detail and materials of the building within the street block or immediate vicinity, including front and side setbacks, verandahs, fences and vehicular access.
Clause 39(3) of TPS 4 provides that '[u]nless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Residential Design] Codes is to conform to the provisions of those Codes'. The construction of a single carport on the subject land falls within the ambit of the Residential Design Codes of Western Australia (2010) (Codes).
Clause 70 of the Scheme, which relates to the provision of car parking, has no application in this case, as the 'development approval and the proposed development' do not involve a change of use.
Clause 27(3) of the Scheme provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, cl 27(4) of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•the provisions of the Scheme (subclause (a));
•any relevant planning policy (subclause (b));
•any submission accompanying or relating to the application (subclause (e));
•the orderly and proper planning of the locality (subclause (f));
•the conservation of the amenity of the locality (subclause (g)); and
•the design, scale and relationship to existing buildings and surroundings of any proposed building or structure (subclause (h).
Clause 28 of TPS 4 is cited by the respondent as a reason for refusal; however, for reasons discussed later in these reasons, this clause is not considered relevant to this application.
Clause 41(2) of the Scheme sets out objectives for the Residential zone and requires that, in considering an application for development, regard is to be given to those objectives. The objective that is relevant to this application is:
(g)to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping;
Clause 78 of the Scheme empowers the Council to make planning policies relating to an aspect or aspects of development control, or any other matter relevant to the Scheme. These policies may be applied to all or part of the Scheme Area. Clause 78(8) of the Scheme provides that a planning policy prepared under cl 78 shall be consistent with the Scheme and where any inconsistencies arise, the Scheme prevails. Clause 27(4)(b) of the Scheme requires consideration of planning policy in the determination of an application. Three policies referred to by the parties were:
•Local Planning Policy 3.7 Residential Car Parking (LPP 3.7);
•Local Planning Policy 3.1 Streetscape (LPP 3.1);
•Development in the Commercial/Residential Zone Policy.
According to the respondent, these policies have been formulated and adopted by the Council in accordance with the provisions of cl 78 of the Scheme.
Issues
The parties identified the following issues for determination in relation to this matter:
1)Whether the proposed development should be allowed in the front setback area of the subject land, having regard to LPP 3.7.
2)Whether the proposed development is consistent with LPP 3.1 in regard to consistency with the prevailing street setback, as required by para 5.2(1)(a) of LPP 3.1.
3)Whether the provision of the respondent's local planning policies relating to streetscape and car parking are as relevant in this context, given the land on the opposite side of Churchill Avenue is zoned Commercial Residential.
4)Whether the amenity of the locality is affected by surrounding commercial uses and Princess Margaret Hospital, with particular regard to the availability of street parking for residents.
5)Whether the applicants are required to have two onsite bays, having regard to Element 6.5 of the Codes.
6)Whether the proposed development is capable of approval pursuant to cl 28(3)(a) and cl 28(3)(b)(iii) of TPS 4 in regard to consistency with adopted planning policies and the future development of the locality.
Although the parties have addressed issues 1 4 separately, the Tribunal considers that both local policies of the respondent are interrelated and address matters relating to streetscape, and as such, should be read in conjunction. The issues identified in issues 3 and 4 are perhaps reasons why the policies should be departed from in the circumstances of this case. Therefore, the Tribunal will address issues 1 4 together and deal with the remaining two issues separately.
Issues 1 4
The stated aim of LPP 3.1 is 'to protect and reinforce the existing development patterns identified in different parts of Subiaco through appropriate design whilst also encouraging innovative housing design that meets the need of a changing community'. The core principle of this policy is to ensure that development is consistent with the streetscape and neighbourhood character of its locality (that is, height, front setbacks and bulk). The position taken by LPP 3.1 in regards to front setbacks in an area coded R20 is that any development should be set back from the primary street at a distance no less than the 'prevailing street setback' or match the setback of houses on either side of the subject property. More particularly, in respect to development relating to car parking structures, cl 6 of LPP 3.1 states as follows:
Car parking structures are seen to potentially damage traditional streetscapes due to their visual dominance, especially when situated in the front setback area. On this basis, any car parking structures (including … carports, …) should be located as per the City Residential Car Parking Policy in addition to meeting the relevant setback requirements of this policy and the Residential Design Codes.
The City adopted LPP 3.7 pursuant to cl 78 of TPS 4 to complement the provisions of TPS 4 and the Codes in relation to streetscape, vehicular access and car parking. The intent of this policy is to minimise the detrimental impact of inappropriately located onsite car parking areas and structures on existing streetscapes, whilst protecting the safety of the public. The stated objectives of LPP 3.7 that are pertinent to this application are:
4.1To assist the development of attractive streetscapes;
…
4.3To reduce the visibility of car parking areas and structures from the perspective of the primary street where preferable access is available.
4.4To assist in the sympathetic design of car parking structures in relation to existing onsite buildings, and the residential areas in which they are located;
…
4.6To ensure that the opportunity for use of street parking is maximised through the removal of redundant or inappropriate onsite car parking structures, areas and crossovers;
4.7To reduce the removal of … gardens for the development of car parking areas and structures;
…
4.10To reduce the number of car parking areas and structures which conflict with an existing pattern of building setbacks; and
4.11To reduce the number of car parking areas and structures … which obscure the view of the dwelling as seen from the street.
LPP 3.7 sets out, in order of acceptability, possible locations and access arrangements for car parking areas and structures. These are as follows:
6.1 Rear Access Located to the rear of a property behind the dwelling, not accessed by or visible from the primary street. Lots that have vehicular access via a rightofway should use the rightofway for access to all required car-parking facilities. (Most acceptable).
6.2 Secondary Street Located and accessed off a secondary street behind the dwelling, not visible from the primary frontage of the dwelling.
6.3 Front Access Accessed off the primary street and located at the rear of the property.
6.4 Side of dwelling Located behind the primary building line, alongside the dwelling and accessed off the primary street.
6.5 Front of dwelling Car parking areas and structures (excluding garages) located forward of the primary building line (in front of the dwelling). (Least acceptable).
At present, the only car parking available onsite is a garage structure that is located at the rear of the subject land, which is capable of accommodating one vehicle and has access from the right of way. It is not possible to locate additional car parking at the rear of the lot due to the recent construction of a swimming pool. Any additional car parking is accommodated either onstreet or on the verge in front of the subject land.
LPP 3.7 takes an inflexible approach to the options, and stipulates that Council will not approve access from a primary street where a more acceptable method of access is available (that is, the options set out in cl 6.1 or cl 6.2 of LPP 3.7). The current arrangements meet the most desired location and access arrangement for the subject land. The question, therefore, is whether discretion should be exercised to approve additional car parking onsite that would, in terms of LPP 3.7, be located in the least desirable location.
Clause 8.0 of LPP 3.7 provides the ability to vary the location and/or access to onsite car parking requirements where one or more of the 12 specified exceptions apply. The exceptions pressed by the applicants are cl 8.1, cl 8.2 and cl 8.5, which read as follows:
8.1Where the nature of the existing development is such that the car parking requirement cannot be provided elsewhere.
8.2Where there is, in the surrounding development, a suitable existing pattern of parking within the street setback area (nominally greater than 50%). In determining whether the existing pattern of parking in surrounding development is suitable, regard will be given to:
i)[w]hether surrounding development has the potential to be redeveloped such that car parking can be provided in a more acceptable location as defined by clause 6.0 of this policy;
ii)[w]hether the existing pattern of parking structures in the street setback area are of high architectural and streetscape quality; and
iii)[i]n cases of uncovered car parking areas, whether the location has the necessary approval to be considered suitable by the City.
8.5Where, in the opinion of the Council, the proposed parking arrangement would enhance the streetscape.
The applicants accepted that the respondent's local planning policies have some relevance in consideration of the matter but submitted that the policies should be accorded little weight and must be considered in light of the findings of Barker J in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433. In this decision, his Honour held that, while policy guides the exercise of discretion, it does not replace the discretion in the sense that it is to be inflexibly applied regardless of the merits of the particular case.
The applicants asserted that the proposed carport is in keeping with the character and scale of existing development and the design of the carport is consistent with the overall objectives of the respondent's policies insofar as 'it continues to provide for surveillance, is built to a high standard of design and finish and will complement the existing dwelling in order to enhance the streetscape and be a sympathetic design'. As to the location of the carport in front of the existing dwelling and within the front setback area, the applicants submitted that, for the following five reasons, it is appropriate to depart from the respondent's policies and approve the carport:
i)car parking cannot be provided elsewhere onsite and there is a lack of available on-street car parking;
ii)although the number of existing crossovers within the surrounding development do not meet the 'nominally greater than 50%' criteria specified in LPP 3.7, they form part of the streetscape, and potential exists for more than 50%, having regard to the capability for crossovers being provided to the commercial properties on the northern side of Commercial Road;
iii)the subject land is not located in a residential environment, as land on the northern side of Churchill Avenue is characterised by a mixture of building types including single dwellings, dwellings converted for commercial use, buildings comprising commercial uses, and others providing a mix of commercial and residential uses in a multiple dwelling configuration. The amenity of the locality is affected by the surrounding commercial uses, which results in extensive on-street parking and verge parking, especially during commercial hours. The arrangement of car parking along Churchill Avenue has an adverse visual impact on the Churchill Avenue streetscape and the removal of verge parking, and the provision of a crossover will enhance the streetscape by providing a break in the 'wall' of car parking along Churchill Avenue;
iv)both local planning policies apply to residential development in the context of residential streetscape. This is not the case in this instance as the subject land is located in a mixed use setting, as the lots on the northern side of Churchill Avenue are zoned Commercial Residential under TPS 4. Therefore, consideration must be given to the overall streetscape context, which includes development of the Commercial Residential zone which allows for: zero lot line development to the street; plot ratio of 1.5; Residential R80; building heights of up to 9 metres wall height and 12 metres overall height; and provision for street crossovers; and
v)given the location of the street trees, the structure would only be apparent adjacent or near to the property when travelling along Churchill Avenue.
Tribunal's considerations
The applicants are correct in saying that Churchill Avenue is not strictly a traditional residential streetscape and, as such, the respondent's policies need to be viewed in this context. Notwithstanding, the principles, aims and objectives of the respondent's policies are fundamentals of orderly and proper planning that have application to circumstances in this case.
The agreed statement of issues and facts by the parties sets out the analysis of the street block, which is visually demonstrated at page 85 of the agreed bundle of documents. This assessment highlights the prevailing street setback, which is 3.5 metres, and the pattern of vehicle access and parking, which, for the most part, is located at the rear of the properties with access via the rear right of way. Very few of the properties have crossovers onto Churchill Avenue. Photographs of those properties were included in the agreed bundle of documents.
The Tribunal, together with representatives of the parties, had the benefit of a view of the subject land, the rear right of way and the section of Churchill Avenue between Coglan Road and Thomas Street. From the evidence and from observations made on the view, the south side of Churchill Avenue can be described as typically single residential in character, although there are two examples of grouped dwellings within this section of the street. The dwellings are mostly single storey of different styles, condition and age, but most would be of similar era to the dwelling on the subject land. The prevailing street setback is 3.5 metres, and with the exception of the grouped dwellings, there is a cohesive presentation of the dwellings to the street. Landscaped front setback areas and low continuous front fences of various designs are a dominant feature of the streetscape, although there are a number of 1.8 metre high solid front fences that interrupt the pattern. With the exception of the grouped dwellings, No 21 Churchill Avenue with primary street frontage to Thomas Street, and one lot that does not have access to either the street or the right of way, the only single residential dwelling on this side of Churchill Avenue that has a crossover and a car parking space in the front setback area is No 37. Access and parking arrangements for all other lots is via the right of way at the rear of the lots. Street trees are prevalent in the street and, from some viewpoints, the canopy of the street trees mask the dwellings behind.
The northern side of Churchill Avenue is characterised by a mixture of building types, although the predominant form is single storey residential dwellings which may or may not be used for commercial purposes. While many of the dwellings have been converted for office use, it is not obvious at first glance that commercial activity is operating from the premises. The most observable indicator is the small scale signage identifying the use of the premises. The new developments are evident in the street; however, the design of these has been responsive to the streetscape elements, such as setback, height, scale, front fences and verge treatments. The predominant parking arrangement onsite is for parking areas to be located at the rear of the lots accessed via the right of way. There is a noticeable lack of vehicular crossovers onto Churchill Avenue, which results in an uninterrupted pattern that enforces the visual rhythm of the street. The interface between the private and public domains is clearly defined by low vegetated edges or fencing. The verge areas contain a variety of street trees and are generally grassed and read as a continuous linear element of the street.
Although Churchill Avenue is not strictly speaking a traditional residential streetscape as one side of the street encompasses mixed use, the existing development pattern is such that the inclusion of built form in the front setback area such as that proposed, will have a detrimental affect on the rhythm of the streetscape and have a significant visual impact, both in terms of scale and interface, on the overall character of the street. It is acknowledged that parking in the street is at a premium during commercial hours and forms a continuous line of vehicles along both sides of the street; however, this impact is softened by the street trees and is consistent with inner urban living, particularly in close proximity to a Mixed Use zone. The proposed carport will protrude into the prevailing setback area of the streetscape and provide for a pattern of car parking that is uncharacteristic in the street. Development such as this would be contrary to the principles and objectives of good streetscape design and should not be approved.
The fact that there is only one car parking space on the subject land is not an unusual circumstance in an inner urban area and reflects the era of development of the area. Further, the applicants had the option to increase parking at the rear of the lot but chose not to, constructing a swimming pool in this location. The Tribunal is not persuaded that the lack of a second car parking bay on site is a sufficient reason to support the introduction of built form in the front setback area of the subject lot which will have a negative impact on the streetscape.
The applicants also argued that consideration must be given to the overall streetscape context, which includes the potential for development that meets the development standard specified for the Commercial Residential zone. Recent developments constructed on the northern side of Churchill Avenue complement and are respectful of the character of the street, particularly in regards to elements such as scale, massing, built form and parking arrangement. There is no evidence to suggest that this would not be the case in the future. If recent past developments are an indicator of the future, then the character of the street would not be altered to such an extent that a carport in the front setback of the subject lot would be considered as a positive element in the streetscape.
In considering the substantive merits of this particular case in light of the established planning framework and in the context of the surrounding development, the Tribunal considers that it would be contrary to the orderly and proper planning of the locality and the conservation of the streetscape character, and therefore amenity of the locality to permit the construction of a single carport in the front setback of the subject land.
Whether the applicants are required to have two onsite car bays, having regard to Element 6.5 of the Codes
The applicants submitted that the application of requiring less than two car bays under the Codes is provided in the context of applicants seeking less than two car bays under performance criteria, as opposed to the respondent imposing such a requirement. The applicants contended that the need for two car bays and that the manner in which those car bays are proposed as part of this application are both capable and appropriate for approval and entirely consistent with the provisions of the Codes. The respondent agreed that the performance criteria apply only when the applicants propose a development at a lesser requirement than the acceptable development standard under the Codes.
Clause 6.5 of the Codes specifies the objective relating to access and car parking requirements, and sets out criteria to be met in order to satisfy that objective. The performance criteria relating to the provision of onsite car parking provision requires that:
Adequate carparking provided on-site in accordance with projected need related to:
•the type, number and size of dwellings;
•the availability of on-street and other off street parking;
•the location of the proposed development to public transport and other facilities.
The acceptable development provision of the Codes in respect to access and car parking for a single house is the provision of two car spaces, which may be provided in tandem. The applicants asserted that they are seeking approval to provide the standard as set out in the acceptable development provisions; however, this can only be achieved by locating the car space in the least acceptable location as identified in LPP 3.7.
The requirements for car parking as specified in the acceptable development provisions of the Codes is one matter for consideration in the determination of this application and could not, of itself, be a determinative matter. As identified in cl 27(4) of TPS 4, there are various matters to which the Council, and the Tribunal on review, are required to have regard in determining an application. These matters include, but are not limited to, the provisions of the Scheme, which incorporates the Codes, any relevant planning policies, the design, scale and relationship to existing buildings and surrounding of any proposed building or structure, the orderly and proper planning of the locality and the conservation of the amenity of the area. The weighing of these factors may lead to a different finding than that specified in the applicable development provisions of the Codes and, therefore, it may be entirely appropriate, in particular circumstances of the particular case, that an application for a second car parking space onsite be refused. Given the findings in relation to Issues 1 4, the Tribunal is of the view that this is one of those cases.
Whether the proposed development is capable of approval pursuant to cl 28(3)(a) and cl 28(3)(b)(iii) of TPS 4 in regard to consistency with adopted planning policies and the future development of the locality
The respondent, in determining this matter, relied on cl 28 of TPS 4, in particular, cl 28(3)(a) and cl 28(3)(b)(ii), as a reason for refusing the proposed development. The applicants asserted that this provision has no application to the matter under review.
Clause 28 of TPS 4 relates to the determination of noncomplying application for development approval. More particularly, cl 28 relates only to development where the Codes do not apply and where the development does not comply with a standard or requirement prescribed under the Scheme.
The proposed carport is 'development' in respect of which the Codes apply, and the issues in dispute relate to noncompliance with a policy requirement rather than a standard or requirement prescribed under the Scheme; therefore, this clause has no application in this case. This application is distinguishable from Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15, as that case involved development that was not one 'in respect of which the [Codes] apply' in relation to the Scheme standard or requirement sought to be varied.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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