Terry and Town Of Vincent

[2007] WASAT 43

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   TERRY and TOWN OF VINCENT [2007] WASAT 43

MEMBER:   MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   16 FEBRUARY 2007

FILE NO/S:   DR 395 of 2006

BETWEEN:   LOUISE TERRY

Applicant

AND

TOWN OF VINCENT
Respondent

Catchwords:

Residential development incorporating a garage - Residential Design Codes (the Codes) - Street Setback Policy - Residential character - Streetscape - Whether merits of proposed development are sufficient to override policy

Legislation:

Planning and Development Act 2005 (WA)
Town of Vincent Town Planning Scheme No 1, cl 19, cl 38
Residential Design Codes of Western Australia (2002)

Result:

Application for review dismissed and decision of respondent reaffirmed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr S Bain (Acting as Agent)

Solicitors:

Applicant:     Self-represented

Respondent:     SJB Town Planning & Urban Design (Town Planners)

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant sought a review of the respondent's decision to refuse an application for the demolition of an existing dwelling and to replace it by construction of a new dwelling incorporating a garage set back 4.5 metres from the street.

2. The respondent's reasons for refusal were founded on non‑compliance of the proposed development with the Town's Street Setbacks Policy, which required the garage to be set back 6 metres from the street or be located behind the main building.

3. The Tribunal found that there were no sound town planning reasons or particular merits associated with the development proposal to demonstrate that the policy requirements in relation to setback should be set aside.

4. The application for review of the respondent's decision was dismissed and the decision of the respondent reaffirmed.

Introduction

1. This is a review of the respondent's decision to refuse an application for the demolition of an existing dwelling and to replace it by construction of a new single storey house at Lot 220 (No 26) Killarney Street, Mount Hawthorn.

2. The development application was lodged with the respondent for determination on 2 June 2006.

3. The respondent refused the application, citing reasons for the refusal on 23 October 2006.

4. An application for review of the respondent's decision was registered with the State Administrative Tribunal (the Tribunal) on 27 October 2006.

The proposed development and its context

1. The proposed development involves the demolition of an old weatherboard and iron dwelling at Lot 220 (No 26) Killarney Street and its replacement with a new single storey, four bedroom, brick house with a zincalume roof.

2. Lot 220 Killarney Street is a narrow, rectangular lot with a 12.91 metre width and a depth of 40.23 metres.  The area of the lot is 491 square metres.

3. The new house is elongated in shape, measuring about 29 metres in length and 12.11 metres in width.  The front of the house, on the western side, is featured by a double garage, 5.77 metres wide, set back 4.5 metres from the street boundary.

4. Killarney Street is orientated on an east/west axis.  Lot 220 is located on the northern side with a southerly frontage to the street.

5. According to the locality plan submitted by the applicant, other lots on the same side of the street appear to be of similar dimension.  On the opposite (southern) side of the street, the Mount Hawthorn Primary School occupies the entire Killarney Street frontage.

6. The dwelling on Lot 219 (to the east of Lot 220) is of brick and tile construction, set back about 7 metres from the street boundary.  A timber carport is situated on the western boundary of the lot in the street setback area.

7. The dwelling on Lot 221 (to the west) is also brick and tile and, according to the applicant's plan, is set back about 6.5 metres where it adjoins the proposed new house on Lot 220.

Town planning scheme and policy provisions

1. Lot 220 Killarney Street, Mount Hawthorn is zoned Residential R30 under the Town of Vincent Town Planning Scheme No 1 (TPS 1).

2. Clause 19 of TPS 1 requires that residential development should conform to the provisions of the Residential Design Codes of Western Australia (2002) (the Codes).

3. Clause 38 of TPS 1 sets out matters which should be taken into account by the respondent in determining applications for development.  Included in these matters is the requirement for the respondent to have regard to "any relevant planning policy".

4. The Town of Vincent has adopted two policies that have relevance to this application.  They are Policy No 3.2.4 ‑ Street Setbacks (Policy No 3.2.4 or Street Setbacks Policy) and Policy No 3.3.3 – Bondi ‑ Locality Plan 3 (Policy No 3.3.3).

5. Policy No 3.2.4 makes the following introductory statement:

   "Frontage street setback areas are an integral part of the streetscape, fundamental to the amenity and particular character of residential localities.

   Front setbacks for new residential buildings are to conform to the adjoining existing houses in order to reinforce the character of the streetscape and to address the traditional relationship of buildings to the street."

6. With respect to garages, Policy No 3.2.4 provides that:

   "All garages are required to be set back at 6.0 metres from the frontage street, or at or behind the line of the front main building wall (not open verandah, porch, portico, balcony and the like) of the nearest dwelling on the site, to preserve and possibly enhance the streetscape."

7. Policy No 3.3.3 describes that in the context of the desired future character of the locality:

   "New contemporary developments are encouraged provided that the design responds to the established character.  The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location and orientation."

8. Policy No 3.3.3 further sets out a special policy on setbacks which provides, inter alia, that:

   "Maintaining existing street, side and rear setbacks is strongly encouraged."

9. The Codes provide Performance Criteria and Acceptable Development standards (that are deemed to comply with the Performance Criteria) in respect to streetscape requirements generally, and the setback of garages and carports particularly (refer page 52 and 53 of the Codes).

10. A constraint in respect to the exercise of Acceptable Development standards is stated in the Codes on page 52 in the following terms:

    "Except as otherwise provided for in an adopted Local Planning Policy development that complies with the following [Acceptable Development standards] is deemed to meet the relevant Performance Criteria."

11. In the absence of any local planning policy measure to the contrary, the Codes set out the following Acceptable Development standard in respect to the setback of garages:

    "A3.5 Garages set back 4.5m from the primary street."

The decision of the respondent

1. The respondent issued its decision to refuse the application for demolition of the existing dwelling and construction of a new single storey house at Lot 220 Killarney Street, Mount Hawthorn for the following reasons:

   1.the development is not consistent with the orderly and proper planning and the preservation of the amenities of the area; and

   2.the non‑compliance with the Town's policy relating to street setbacks, as the proposed garage is required to be set back 6 metres from the frontage street, Killarney Street, or behind the line of the front main building line (not open verandah, porch, portico, balcony and the like) of the dwelling.

The respondent's argument

1. The respondent's argument focuses on the proposition that the proposed development will impact negatively on the local streetscape and therefore reduce the amenity of the area.

2. Witness for the respondent, Mr S Bain, a qualified and experienced town planner, informed the Tribunal in his witness statement that he had inspected the area and noted that dwellings were set back 6‑8 metres from the street and that no garages were located in the setback area.

3. The dwellings adjoining Lot 220 Killarney Street are set back 6.3 metres and 7.6 metres respectively.

4. The proposed development incorporates a garage set back 4.5 metres which is contrary to the pattern of development in the locality.

5. Mr Bain highlighted the relevance of the Town's Policy No 3.2.4 and Policy No 3.3.3, and the need to have regard to the policies in determining the application.

6. The proposed development contravenes Policy No 3.2.4 in that the garage is intended to be set back only 4.5 metres and is in front of the main dwelling, whereas the policy requires that the setback should be 6 metres or be behind the setback of the main building.

7. Mr Bain was also of the opinion that the development did not satisfy the Desired Future Character and Special Setbacks policy requirements of Policy No 3.3.3 because the proposed street setback was inconsistent with the setbacks of other houses in the area.

8. Given the inconsistency of the proposal with the pattern of development in the area and the non‑compliance of the proposal with the requirements of the Town's relevant policies governing the desired character of the area, Mr Bain argued that the application for review should be dismissed.

The applicant's argument

1. The applicant's argument is recorded in a statement of submissions and supporting evidence dated 15 December 2006 and a statement of responses to the respondent's arguments dated 4 January 2007.  Both statements are authored by the applicant, Ms Terry.

2. Ms Terry rejects the notion that the proposed development is inconsistent with the desired future character of the area as expressed by the Town's policy, because the proposed dwelling is of a "federation" style, single storey structure with a steeply pitched roof and rendered facade, typical of the features of Mount Hawthorn style housing.  Ms Terry's statement includes photographic evidence of examples of typical housing in the area to reinforce this point.

3. On the question of the 4.5 metre setback of the garage incorporated in the proposed development, Ms Terry argues that the proposal conforms with the Acceptable Development standard prescribed by the Codes.

4. Ms Terry pointed out that the respondent had not made the applicant aware of town planning policies applicable to this application, hence the proposed development was prepared based on the requirements of the Codes.

5. The respondent, nevertheless, has the capacity to vary the Street Setbacks policy in respect of the setback of garages and Ms Terry, in her evidence, has included eight examples of garages in the Mount Hawthorn area located at setbacks less than the policy requirement.

6. Ms Terry points out that whilst the houses adjoining her property are set back over 6 metres from the street, as stated by Mr Bain, there are in fact carports in the setback area of both properties which influence the streetscape.  Neither neighbour objects to the applicant's proposed development.

7. Ms Terry acknowledges the non‑compliance of the proposed development with the provisions of the Town's Street Setbacks policy, but argues that the discretion available to the respondent under the policy to achieve "an acceptable outcome" should be exercised.

8. The proposed development is an acceptable outcome because the intended single storey, "federation" style dwelling is consistent with the established character and pattern of development in the area and would have a positive impact on the amenity of the area and the existing streetscape.

9. Five other properties in Killarney Street have carports in the front setback area influencing the local streetscape.

10. The proposed development represents a significant improvement to local amenity when compared to the impact on the streetscape of the existing dwelling which is to be demolished.

11. Ms Terry noted that if the proposed development had to be set back in accordance with the Street Setbacks policy, there would be reduced backyard space for family use, or alternatively the house would have to be two storey, with negative implications for the streetscape compared with the present proposal.

12. Replacing the proposed garage with a carport in order to comply with Town policy would, according to Ms Terry, result in disadvantages such as the loss of secure storage, the need for additional double‑brick walls and a consequent reduction of carport width.

Analysis

1. The framework of planning scheme, policies and the Codes, against which this application should be measured, is readily apparent from the evidence before the Tribunal.

2. The framework sets out a logical methodology for the assessment of residential developments and identifies the relevance of the respondent's policies in the process of determining applications.  Within the framework, both TPS 1 and the Codes clearly identify that regard should be taken of relevant local policies in determining development applications.

3. In the case of this particular application, the reasonableness or otherwise of applying the setback requirement of the Town's Policy No 3.2.4 appears to the Tribunal to be the sole issue in question.

4. The applicant is correct in her expectation that the respondent may use discretion to allow a variation from the policy requirement.  Such an exercise of discretion must, however, be based upon the particular merit of the case which demonstrates that the overall outcome, in terms of the intended amenity of the locality (detailed in the relevant Performance Criteria) and the orderly and proper planning of the area, is satisfactorily achieved, notwithstanding non‑compliance with an aspect of the policy.

5. The applicant has argued that she was not made aware by the respondent of the relevant policies governing residential character and street setbacks, and that accordingly these planning controls should not now be given weight in determining the application.  The Tribunal expresses concern that the applicant may not have been fully informed of relevant planning instruments at the time of application, but notes that the communication and administrative processes between the respondent and the applicant are not matters for the Tribunal to explore and remedy.  Rather these are matters to be taken up between the parties and, if irreconcilable, the applicant may wish to approach the Office of the State Ombudsman for a resolution.  For the purposes of this review, the Tribunal must give full weight to the policies in question, as they are formally adopted and published town planning instruments reflecting community aspirations and expectations of the area.

6. The applicant's reasoning for setting aside the 6 metre setback required under Policy No 3.2.4, in favour of the proposed 4.5 metre setback, is based on the premise that the proposed development will have a positive effect on the amenity of the locality.  The supporting arguments for this premise are on the lines that the dwelling is designed in character with the style of housing in the area, there are other examples of dwellings incorporating garages at setbacks less than 6 metres in the Mount Hawthorn area, and there are carports of similar visual impact to a garage in the setback areas of other properties in Killarney Street, including the immediate neighbouring properties to Lot 220.

7. The Tribunal has difficulty accepting these arguments as sufficient to set aside the policy requirements.  There appears to be no issue between the parties as to the character of the proposed dwelling; rather, as previously mentioned, the issue is the question of street setback.

8. The fact that there are some examples of setbacks less than 6 metres in Mount Hawthorn is acknowledged.  However, for the most part, there is no contextual information before the Tribunal as to why or when such setbacks were approved and whether special merits or circumstances were a factor in determination.  The Tribunal notes that only two examples are within the Bondi locality.  One of these appears to be a large, atypical corner lot (51 Blackford Street), and the other (29 Bondi Street) is difficult to assess in a broader streetscape context from the applicant's photographic evidence.

9. At best, the evidence tendered identifies a relatively small number of exceptions to the garage setback requirement, but which, because of either remoteness and varied or unknown context, cannot reasonably be accepted as a substantial argument to set aside policy implementation in this case.

10. The applicant's argument that other properties in Killarney Street are featured by carports in the setback area should exercise a consideration of the local visual context.  The evidence as to the visual character of the street is tendered in photographs appended to the statements of the applicant and the respondent.  The applicant's photos are of some assistance to the Tribunal and confirm the presence of five carports (including one presently existing on the applicant's premises) in Killarney Street.  It is not clear, however, from the photos that the visual impact of the carports is anything more than anticipated by the presence of such structures which, by design in accordance with the Codes, should be distinguishable from the visual impact of garages in the same location.  Carports are required to be visually permeable and hence less intrusive in the streetscape than garages similarly placed.  The photographic evidence tendered by the applicant appears to confirm that the carports are, in fact, visually permeable.

11. The respondent's photographs of the streetscape west of Lot 220 Killarney Street, illustrate well‑maintained dwellings set in pleasant gardens, well back from the street and devoid of substantial structures in the setback area.  The extent of photographs is limited and the Tribunal otherwise remains partly reliant on the descriptive evidence of the parties as to the general character of the street.

12. On the overall evidence, the Tribunal is satisfied that the character of the street is dominated by houses set back 6‑8 metres, with front gardens and occasional low front fences.  The street is generally well‑maintained and pleasant in appearance.  There is a presence of carports in the street, but these would be expected to comply with visual permeability requirements of the Codes and in any case, by their numbers, are not a dominant visual feature of the street.

13. The Tribunal is persuaded by the evidence in respect of the prevailing streetscape that a substantial structure, such as the proposed dwelling incorporating a fully enclosed brick and metal garage at a setback of 4.5 metres, would be inconsistent with the general setback of buildings and hence with the character and amenity of the street.

14. The Tribunal is further persuaded that there is no evidence of substance demonstrating that there are special merits of the proposed development that would give grounds to override the application of the relevant policy governing street setbacks.  The applicant's proposition that compliance with the setback requirements of the policy would limit car park and backyard space, and constrain secure storage features of the proposal, are matters of design within the framework of planning controls.  They are not reasonable or proper grounds for exception to planning controls.

Conclusion

1. For the reasons set out in the preceding analysis, the Tribunal finds no reasonable grounds in relation to this proposal to depart from the requirements of the Street Setbacks Policy No 3.2.4, which prescribes that garages should be set back at least 6.0 metres from the street or at or behind the line of the main building.

2. It is therefore concluded that the application for review should be dismissed.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The decision of the Town of Vincent to refuse approval for the demolition of an existing dwelling and construction of a new single storey house, incorporating a garage set back 4.5 metres from the street at Lot 220 Killarney Street, Mount Hawthorn is reaffirmed.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J ADDERLEY, SENIOR SESSIONAL MEMBER