| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TEEDE and CITY OF VINCENT [2013] WASAT 173 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 2 OCTOBER 2013 DELIVERED : 23 OCTOBER 2013 FILE NO/S : DR 35 of 2013 BETWEEN : ALLAN TEEDE Applicant
AND
CITY OF VINCENT
Respondent
Catchwords: Town planning - Development application - Refusal of a two storey single residence - Proposed double garage accessed from primary street - Potential to take access from right of way - Impact on open space at rear of property - Impact on streetscape - Standing of respondent's policy - Whether discretion should be exercised Legislation: City of Vincent Town Planning Scheme No 1, cl 19(2), cl 20(5), Sch 1
Planning and Development Act 2005 (WA), s 249(1), s 252(1)
(Page 2)
Residential Design Codes of Western Australia, cl 2.4, cl 2.5.2, cl 5.1.2, cl 5.3.5, cl 7.3.1, cl 7.3.1(b), Pt 5, Pt 7, Table 1 Result: Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision: On 23 December 2011, Mr Alan Teede made application to the City of Vincent for the demolition of the existing dwelling at No 15 Franklin Street, Leederville and construction of a new two storey dwelling. The application was refused by the respondent at its meeting of 18 December 2012 and Mr Teede subsequently made application to the Tribunal for a review of that decision.
The substantive issue in this matter was whether, in the context of the relevant planning provisions, it was appropriate for the respondent, or the Tribunal in its place, to exercise discretion in supporting a double garage accessed off Franklin Street, given that access was available from the right of way at the rear of No 15 Franklin Street, Leederville.
The exercise of judgment in determining the issue required weighing up both the amenity impacts on No 15 Franklin Street, Leederville arising from the utilisation of the right of way for access, and the broader impacts on the amenity of residents in the locality and passers-by; that is, the impact on the character of the streetscape arising if access was taken from the primary street.
In regard to the former, the Tribunal found that given the metropolitan context of an inner suburb, the residential coding of No 15 Franklin Street, Leederville, and the fact that the remaining rear open space on No 15 Franklin Street, Leederville would considerably exceed the minimum requirement for outdoor living space, the impact on the rear garden of using the right of way for access was not unacceptable.
In regard to the latter, given the current redevelopment pressures evident in the broader locality, the Tribunal found that the policy objective of seeking to utilise the right of way for vehicular access was not inappropriate, and the application of the policy had merit in terms of the orderly and proper planning of the locality.
For these reasons, the application for review was dismissed and the decision of the respondent affirmed.
(Page 3)
Category: B
Representation: Counsel:
Applicant : Mr P Webb (Acting as Agent)
Respondent : Mr J Algeri (Acting as Agent)
Solicitors:
Applicant : Peter D Webb & Associates (Town Planners)
Respondent : Algeri Planning & Appeals (Town Planners)
Case(s) referred to in decision(s):
Alcock and Town of Claremont [2013] WASAT 83
Brian Wright Architect Pty Ltd and Shire of Mundaring [2009] WASAT 15
Smart and Byrne v Barossa Council [1999] SAERDC 29
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Mr Alan Teede (applicant) made application to the City of Vincent (respondent, Council or City) on 23 December 2011 for the demolition of the existing dwelling and construction of a new two storey dwelling at No 15 (Lot 31) Franklin Street, Leederville (subject land). 2 The application was refused by the respondent at its meeting of 18 December 2012 for the following reasons: 1) Non-compliance with the Acceptable Development and Performance Criteria provisions of the City's Residential Design Elements Policy No 3.2.1 (Design Policy) as follows: 2) The proposed development does not comply with the following objectives of the City of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme) to: i) protect and enhance the health, safety and physical welfare of the City's inhabitants and the social, physical and cultural environment. ii) ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which recognises the individual character and need of localities within the Scheme zone area, and the proposed two storey single house would create an undesirable precedent for the development of surrounding lots, which is not in the interests of orderly and proper planning for the locality. (Page 5)
3 On 23 January 2013, the applicant made application under s 249(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. Section 249(1) of the PD Act enables review of a decision to refuse to grant approval or to impose conditions under an Interim Development Order. The decision of the respondent was made in the exercise of a discretionary power under a planning scheme and, as such, the application for review should have been made under s 252(1) of the PD Act. The parties were made aware of the error and the Tribunal proceeded, with their agreement, as if the application had been made under s 252(1) of the PD Act.
Site and locality 4 The subject land, which is located on the southern side of Franklin Street, Leederville, has an area of 587 m² with front and rear boundaries of 12.07 metres and side boundaries of 48.68 metres. The subject land has a frontage to Franklin Street and rights of access via a right of way located at the rear of the subject land. 5 Current improvements to the subject land comprise an existing single residence. A number of mature trees are located on the southern portion of the subject land. 6 The dominant character of the immediate locality is single residential dwellings on similarly sized lots which also maintain frontage to a primary street as well as a rear right of way. 7 There are 12 properties in the street block (southern side) in which the subject land is located. Two of these properties have a carport or garage with access obtained from the primary street (Franklin Street), five with access to a hardstand area from Franklin Street, and five with access from the sealed right of way. 8 On the northern side of Franklin Street, all the lots have vehicular access from the street. The majority of residences have access to hardstand areas, two have carports (one to the side rather than in front of the dwelling), two new residences have garages incorporated into the dwelling, and the residence at the western end of the street (facing Loftus Street) has a free standing garage accessed from Franklin Street.
Planning framework 9 The subject land is zoned Residential and coded R30 under the provisions of TPS 1. (Page 6)
10 Clause 6 of TPS 1 sets out the general objectives as follows: (a) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities; (b) to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment; (c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which … (f) to coordinate and ensure that development is carried out in an efficient and environmentally responsible manner which 11 Clause 19(2) of TPS 1 requires that unless otherwise provided in, or consistent with, the Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes. 12 However, cl 20.5 of TPS 1 provides discretion in regard to cl 19(2), in that the Council can consider variations to Residential Planning Codes where it considers that acceptable levels of residential amenity can be achieved. 13 Schedule 1 of TPS 1 defines amenity as follows: … all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity[.] (Page 7)
14 There are two provisions of the Residential Design Codes of Western Australia (R-Codes) which need to be assessed in relation to this review. 15 The deemedtocomply provisions of cl 5.1.2 of the RCodes 'StreetSetback' read as follows: (Page 8)
C2.4 A porch, balcony, verandah, chimney or the equivalent may (subject to the Building Code of Australia) project not more than 1m into the street setback area, provided that the total of such projections does not exceed 20 per cent of the frontage at any level. (refer Figure 2b). 16 The relevant Design Principles which require to be addressed should the deemedtocomply provisions of the above clause not be met are as follows: 17 The deemedtocomply provisions of cl 5.3.5 of the RCodes 'Vehicular Access' read as follows: C5.1 Access to on-site car parking spaces to be provided: • where available, from a right-of-way available for lawful use to access the relevant lot and which is adequately paved and drained from the property boundary to a constructed street[.] 18 The Design Principles which require to be addressed should the deemedtocomply provisions of the above clause not be met are as follows: P5 Vehicular access provided for each development site to provide: (Page 9)
19 Clause 2.4 of the RCodes states that: 20 Clause 2.5.2 of the RCodes sets out the matters to which the decisionmaker shall have regard in exercising its judgment as follows: (a) any relevant purpose, objectives and provisions of the scheme; (b) any relevant objectives and provisions of the R-Codes; (c) a provision of a local planning policy adopted by the decision-maker consistent with and pursuant to the R-Codes; and (d) orderly and proper planning. 21 The subject land is classified under the Leederville Precinct Policy StatementNo 3.1.3 (Leederville Policy). Clause 1 of the Leederville Policy provides, in relation to the residential area: All residential development is to comply with the policies relating to the Residential Design Guidelines and Residential development. 22 In the current context of the Design Policy, the provisions established by clause 6.4.2(iv) include: Setbacks of Garages and Carports Garages and carports are not to visually dominate the site or the streetscape, and not to detract from the dominant elements of dwellings within the streetscape context. Garages and carports are to be located behind the street setback line and at the side of the dwelling where space exists and accessed from an abutting right of way where a right of way exists[.] 23 Clause 6.4.2(i)(a) of the Design Policy establishes the deemedtocomply requirement for street setbacks as follows: (Page 10)
The primary street setback is to reflect the predominant streetscape pattern for the immediate locality which is defined as being the average setback of the 5 adjoining properties on each side of the development[.] 24 Clause 6.4.2(i) of the Design Policy also sets out the deemedtocomply requirements for upper floor setbacks as follows:
Upper Floor Feature Facing Primary Street | | | | A minimum of two metres behind each portion of the ground floor setback. | | | A minimum of 1 metre behind the ground floor setback. |
25 Clause 6.4.2(ii)(a) of the Policy establishes deemed to comply requirements for minor incursions into street setback area as follows: A porch, verandah, chimney or the equivalent may project not more than one (1) metre into the street setback area, provided that the maximum total width of such projections do not exceed 20 precent of the lot frontage at any level[.]
26 Clause 6.4.2(iv)(a) of the Policy sets out deemedtocomply requirements for the setback of garages and carports as follows: Car parking, garages and carports are to be located at the rear of the property and accessed via a right of way where a right of way exists and the property has legal right of access to the right of way[.] 27 However, clause 6.4.2(iv)(b) of the Design Policy states that: (Page 11)
(4) the applicant demonstrates there would be a major impact on the existing amenity or open space at the rear of the property by using the right of way[.]
Proposed development 28 The application the subject of this review comprises the demolition of the existing residence and the development of a two storey single house with a double garage to be constructed towards the front of the dwelling with access from Franklin Street. 29 The proposed primary street setback is 8.8 metres to the dwelling and 6 metres to the garage. The side setbacks of the proposed residence from the eastern boundary are generally between 1,200 millimetres and 1,500 millimetres, although this is broken by a 4 metre courtyard. The garage has no setback to the eastern boundary. Setbacks from the western boundary vary from 1,000 millimetres to 2,040 millimetres, although the rear section on the upper floor is set back approximately 3.5 metres. 30 On the upper floor, a balcony setback of 7,014 millimetres from the street boundary runs across the front of the proposed dwelling, with the two bedrooms located a further 1,910 millimetres back. The distance from the southern extremity of the covered alfresco area to the rear southern boundary is approximately 16 metres.
The issues 31 It was argued by the parties that the substantive issue in this matter was the location of the parking; that is, whether, in the context of the relevant scheme provisions and applicable policy, it was appropriate for the respondent, or the Tribunal in its place, to exercise discretion in supporting a double garage accessed off Franklin Street, given that access was available for the right of way at the rear of the subject land. 32 In addition, the respondent raised issues in regard to what it contended were setbacks from the street which did not comply with the Design Policy. While these were regarded as secondary to the parking issue by the respondent, they would need to be considered should the Tribunal consider finding in the applicant's favour on the substantive issue. (Page 12)
The applicant’s case 33 The parties agreed that the respondent's Design Policy was the substantive planning instrument in regard to the matter under review. 34 The applicant submitted that clause 6.4.2(iv) of the Design Policy, while generally seeking to ensure that garages were to be located at the rear of the subject land and accessed by a right of way, provided that, in certain instances, the respondent could support vehicular access from a primary street. It was further submitted that the Design Policy set out a range of circumstances where such flexibility could be exercised. In this matter, the applicant advised it was relying on clause 6.4.2(iv)(4) of the Design Policy, which read as follows: (4) the applicant demonstrates there would be a major impact on the existing amenity or open space at the rear of the property by using the right of way. 35 The applicant submitted that a requirement to locate the double garage at the rear of the subject land would result in a major impact on the existing amenity and open space at the rear of the subject land for the following reasons: 1) The location of the double garage at the rear of the subject land would result in significant mature vegetation being removed, including two mature Eucalyptus trees. 2) The retention of the mature vegetation is desired by the landowner, as it will provide natural shading during the summer months and ensures the existing character at the rear of the subject land is preserved. 3) The visual impact of the garage and the removal of the mature vegetation would detract from the existing amenity and character of this area in an undesirable and unacceptable way. 4) The required width of the double garage and additional setback required of 1 metre to the right of way would dominate the rear of the subject land in an unacceptable manner. 5) The resultant 'L' shaped area of private open space would seriously constrain the landowners' enjoyment of this area. (Page 13)
6) A double garage at the rear of the subject land would utilise about 25% of the open space but far more of the premium space on the eastern side (which receives solar access), which is far too great an impact on the existing amenity and sustainable use of the rear of the subject land. 7) Although the respondent has agreed to a fully enclosed garage, the location of a garage at the rear of the subject land would still require a covered and protected access way to be created from the garage to the house in order to protect the residents from the natural elements. This would further impact on the usability of the open space. 8) Importantly and in summary, the construction of a garage at the rear of the subject land will waste currently valuable free rear space, require the destruction of substantial mature vegetation and result in a fragmented rear area unsuited to a growing family.
The respondent's case 36 The respondent argues that the proposed development does not comply with the Design Policy provision that car parking, garages and carports are to be located at the rear of the subject land and accessed via a right of way, where one exists. 37 The respondent conceded that the Design Policy provides a series of criteria under which vehicular access to car parking, carports and garages may be provided from the street, even when a right of way is available to the subject land, but contended that the proposed development did not satisfy these criteria. 38 In this regard, the respondent submitted that the existence of mature vegetation at the rear of the subject land did not negate the ability for a garage, carport or parking area to be constructed off the right of way. This is based on the assertion that the majority of trees could be retained intact should the garage be constructed on the eastern side of the subject land. This, it was submitted, would provide adequate shade and amenity for future occupants of the site and, on that basis, there were no exceptional circumstances that should warrant variation from the Design Policy requirements. (Page 14)
39 In addition, the respondent contended that locating a garage or parking area would not constitute a major impact on the existing amenity or open space at the rear of the subject land, given its size (587 m²). Furthermore, given the footprint of a revised proposal was consistent with the current proposal and a redesign building was located on the minimum required front setback, this would leave approximately 300 m² of open space to the southern portion of the subject land as rear open space. This, the respondent submitted, would provide adequate and useable rear open space.
Tribunal's considerations 40 Part 7 of the R-Codes sets out the scope of local planning policies. Clause 7.3.1 of the RCodes provides powers for the local authority to utilise local planning policies to amend or replace deemed-to-comply provisions set out in Pt 5 of the R-Codes. Clause 7.3.1(b) of the RCodes requires amendments or replacements to deemed-to-comply provisions to be consistent with the relevant design principle. Essentially, this precludes policy amendments by local authorities to the design principles of the R-Codes. 41 The Design Policy establishes 'Design Solution(s)' which effectively vary the design principles of the R-Codes. In broad terms, such a policy would generally fall foul of the recently adopted provisions in Pt 7 of the R-Codes. However, atypically, cl 20(5) of TPS 1 provides powers where the City can consider variations to RCodes where it considers that acceptable levels of residential amenity can be achieved. 42 As previously noted, Sch 1 of TPS 1 defines 'amenity' as follows: 'amenity' means all those factors which combine to form the character of the area to residents and passers-by and shall include the present and likely future amenity[.] 43 The respondent's policy, in dealing with garages and carports, varies both the deemed-tocomply provisions and the design principles of the RCodes and, while the proposed development satisfies the design principles of cl 5.3.5 of the R-Codes in exercising judgment to determine the proposal, consideration needs to be given to the Design Policy and, in doing so, one needs to look beyond those specific provisions of the RCodes. 44 The power to do so is explicitly provided by cl 20(5) of TPS 1 and, in doing so, cl 2.5.2 of the R-Codes sets out matters to which the decisionmaker shall have regard as follows: (Page 15)
(a) any relevant purpose, objectives and provisions of the scheme; (b) any relevant objectives and provisions of the R-Codes; (c) a provision of a local planning policy adopted by the decisionmaker consistent with and pursuant to the R-Codes; and (d) orderly and proper planning. 45 In applying the Design Policy in this particular case the exercise of judgment requires an evaluation of both the amenity to residents on the site the subject of this review, which in this case involves the amenity impacts on the subject land which would arise from the utilisation of the right of way for access, and the broader impact on the amenity of residents in the locality and passers-by; that is, the impact on the character of the streetscape arising if access is taken from the primary street. 46 In regard to the former, clause 6.4.2 of the Design Policy makes provision where vehicular access to garages for single houses may be from a street, regardless of whether a right of way is available to the subject land. This provision is, however, subject to compliance with explicit criteria and, in this case, the applicant submits 'there would be a major impact on the existing amenity or open space at the rear of the subject land by using the right of way'. 47 In regard to the latter, any deliberations on the exercise of judgment in this matter must consider the objective of the policy which seeks to ensure that '[g]arages and carports are not to visually dominate the site or the streetscape'. The Tribunal will deal with these two questions in turn.
Impact on the existing amenity or open space at the rear of the property 48 The currently proposed residence has an overall length of 27.150 metres from the front columns of the portico to the rear columns of the covered alfresco area. The portico is set back 5.5 metres from the Franklin Street boundary. This establishes a setback of approximately 16 metres from the rear columns of the alfresco area to the southern boundary. 49 Should a garage of the size currently proposed be placed in the southeastern corner of the subject land, it would require a setback of 1 metre from the right of way. In such a case, the distance from the rear columns of the covered alfresco area to the northern wall of the garage would be approximately 9 metres. Such a configuration would create an open space of approximately 9 metres by 12 metres between the residence (Page 16)
and the garage (not including the covered alfresco area) and an area of approximate 6 metres by 5.5 metres to the west of the garage. Such a solution would require the removal of an existing Eucalyptus tree and may well require the removal of a larger Eucalyptus tree which would be in close proximity to the western wall of the garage. The location of the existing sewer line also could potentially involve some increase in costs in the construction of the garage. It should be noted that the Cape Lilacs referred to in the respondent's submissions are, in fact, on the adjoining lot to the west, rather than on the subject land. 50 The useable open space in such a solution would be further decreased by any requirement for a covered and protected access way to be created from the garage to the house, but could be increased to some degree by a reconfigured plan which could feasibly move the proposed residence somewhat further to the north on the subject land. 51 Thus, the provision of a garage accessed from the right of way will clearly involve the removal of mature vegetation with impacts on the amenity of the rear garden of the subject land in the short to medium term and will constrain the size and configuration of the rear garden. 52 In Alcock and Town of Claremont [2013] WASAT 83 at [52],the Tribunal considered the relevance of matters internal to a lot the subject of the review, and concluded: The Tribunal does not say that matters internal to the lot are not relevant considerations; in fact, there may be instances where such matters will have a significant bearing on whether there is a practical alternative access point. It is only those matters personal to the landowners' preferences that are not relevant considerations. 53 Given the particular circumstances of this case, while rear access may not be the preference of the applicant, it is clear that such access could feasibly be provided on the subject land.
Impact on the streetscape 54 The impact on the character of the streetscape needs to be weighed against the intent of the respondent's policy to encourage residential development that harmonises with the existing streetscape and complements the character of the locality, and, more particularly, minimises the impact of vehicles on the amenity of the streetscape. 55 The streetscape on the southern side of Franklin Street is characterised by single storey dwellings set back between 4 metres and (Page 17)
8 metres from Franklin Street. The side setbacks are limited, and only the site the subject of this review has vehicular access from Franklin Street to the rear of the subject land. Front fences are generally low or of an open construction, although some residences have no front fence at all, and one residence has a high masonry wall. 56 Provision for vehicles on these lots is generally either not provided or restricted to hardstand areas; a carport in the front setback is provided on one lot and, as noted, access is provided to a garage at the rear of the subject land. 57 Thus, at this point in time, the streetscape represents a traditional pattern of single storey, reasonably closely packed dwellings with generally limited front setbacks and front gardens open to the street. The single carport and the one masonry wall represent the only current anomalies in terms of the consistency of this pattern. It is clear, however, that the broader locality is already undergoing some redevelopment and this trend is likely to increase in the future. 58 The only substantive impact on the integrity of the general character of Franklin Street to date has been the construction of two double storey residences with integrated double garages constructed on the northern side of the street. 59 However, in Brian Wright Architect Pty Ltd and Shire of Mundaring [2009] WASAT 15 at [27], the Tribunal noted that, as the court observed in Smart andByrne v Barossa Council [1999] SAERDC 29 at [9]: Trite as it may be so, 'two wrongs do not make a right', or to put it another way, the Court cannot use bad examples of development as justification for proposals which are contrary to a Plan's provisions. 60 In this context, any exercise of discretion to approve the proposed development would have the result of both adversely impacting on a particularly intact streetscape, and undermine the potential for the respondent to effectively implement a properly constituted policy.
Conclusion 61 The substantive issue before the Tribunal in this matter is the determination of a conflict between the aspirations of the applicant that, in developing a new residence on the subject land, would prefer the convenience of vehicular access from the primary street and the larger rear garden which that would provide, and the application of the provisions of a policy by the respondent which seeks to ensure that garages do not visually dominate the site or the streetscape. (Page 18)
62 The requirement to take access from the right of way will clearly impact on the amenity of the rear garden in the short to medium term, and constrain the size and configuration of the rear garden. However, given the metropolitan context of an inner suburb, the residential coding of the subject land, and the fact that the remaining rear open space on the subject land will considerably exceed the minimum requirement for outdoor living space required by Table 1 of the RCodes, the Tribunal does not consider the impact on the rear garden unacceptable. 63 In addition, given the particularly intact nature of the streetscape on the southern side of Franklin Street, the Tribunal is of the view that any approval of a double garage accessed from the street would have an adverse impact on the character of the streetscape by introducing a discordant element and setting a potential precedent which would undermine the application of the respondent's Design Policy. Given the current redevelopment pressures evident in the broader locality, the Design Policy objective of seeking to utilise the right of way for vehicular access is not inappropriate and, in the context of the paving and draining of the right of way by the respondent in 2010, the Tribunal believes the application of the Design Policy has merit in terms of the orderly and proper planning of the locality. 64 For these reasons and in considering the substantial merits of this particular case in light of the objectives of the planning framework, the Tribunal does not consider the proposal warrants approval.
Orders |