TRICKEY and CITY OF SUBIACO
[2005] WASAT 256
•22 SEPTEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: TRICKEY and CITY OF SUBIACO [2005] WASAT 256
MEMBER: MS M CONNOR (MEMBER)
HEARD: 24 JUNE 2005
DELIVERED : 22 SEPTEMBER 2005
FILE NO/S: DR 384 of 2005
BETWEEN: PATRICIA TRICKEY
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town Planning - Development – Single carport located within primary street setback area – Alternative location available – Streetscape
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 22(1), cl 23, cl 27(3), cl 37, cl 38, cl 39(3), cl 41, cl 70, cl 72, cl 78, cl 78(8)
Town Planning and Development Act 1928 (WA) s 8A(1)
Result:
The Application for Review is dismissed; and
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr H Dykestra (Agent)
Respondent: Mr M Casselton (Agent)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Patricia Trickey applied to the State Administrative Tribunal (the Tribunal) for review of the decision of the City of Subiaco refusing planning approval for the construction of a single carport within the primary street setback on Lot 150 (No 3) Kanimbla Road, Nedlands.
The Tribunal was of the view that the proposed carport would not contribute positively to the streetscape of Kanimbla Road and as such determined that the proposed development would be inconsistent with the orderly and proper planning and the conservation of the amenity of the locality. The Application for Review was therefore dismissed and the decision of the respondent affirmed.
Introduction
This is an application by Patricia Trickey (the applicant) for review of a decision of the City of Subiaco (the respondent) to refuse planning approval for the "construction of a single carport within the primary street setback" on Lot 150 (No 3) Kanimbla Road, Nedlands (the subject land).
The development application was refused under delegated authority of the Director, Development Services on 27 January 2005. In refusing the application, the respondent gave the following reasons:
"a)The proposal is contrary to the following requirements of the City's Streetscape and Neighbourhood Character (R15 and R20 zones) policy:
Clause 3(a) "Setbacks"
The proposal is in front of the existing house and will alter the existing street rhythm attributed to the consistency of the setback pattern;
b)The proposal is contrary to the locational requirements of the City's Residential Car Parking policy in that the subject site has access to a rear right of way yet the proposed carport is forward of the building line within front setback area."
The applicant, on 15 March 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) to have the decision reviewed.
The subject land
Lot 150 is 483 square metres in area and has a 12.191 metre frontage to Kanimbla Road. The subject land is located on the eastern side of Kanimbla Road, and is the second lot south of the intersection of Kanimbla/Hardy Roads. A 3.5 metre wide paved and drained right‑of‑way runs along the rear boundary of the lot.
Development on the subject land comprises a single storey 1920's Californian Bungalow dwelling and a separate "ancillary accommodation" building located at the rear of the property (setback 1.8 metres from the right‑of‑way). A hardstand car parking bay, accessed via Kanimbla Road, is currently provided for the dwelling in the area designated for the proposed carport. Parking for the ancillary accommodation is provided at the rear of the property, off the right‑of‑way.
The proposal
The proposal before the Tribunal is for the construction of a single carport located within the primary street setback area. The site plan that forms part of the planning application shows the carport to be 5 metres in length by 3.6 metres in width, abutting the existing dwelling. The carport is proposed to be setback 1.6 metres to the eastern (front) boundary and 1.85 metres from the northern (side) boundary. The height of the columns of the carport is dimensioned on the plans as 2.3 metres.
A notation has also been incorporated on the plans stating that the "[p]roposed roof pitch and materials (roof decking) are in keeping with the existing residence. Colours to match also."
Planning framework
The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" with a permitted site density of R20 under the City of Subiaco Town Planning Scheme No 4 (TPS 4).
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 Council's Policy Manual. The subject land is located in precinct 12 "Hollywood". The corresponding planning policy was not submitted into evidence.
Subclause 22(1) of TPS 4 requires all development, except as provided in cl 23 of the Scheme, to obtain planning approval prior to the commencement of development.
Clause 38 of TPS 4 requires the development of land to be in accordance with the standards and requirements contained in the Scheme Text, the planning policies and the Design Codes.
Pursuant to subclause 39(3) of TPS 4, development of land for residential purposes dealt with by the Design Codes, is to conform to the provision of those Codes, unless otherwise specified in the Scheme.
Clause 70 and cl 72 of TPS 4 require that for residential development, car parking is to be provided in accordance with the requirement of the Design Codes. Clause 72 also specifies the design requirements for car parking spaces.
Subclause 27(3) of TPS 4 provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, subclause 27(4) of the Scheme sets out the matters to which regard is to be given in the determination of an application. The relevant matters relating to this application are as follows:
"(a)the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b)any relevant planning policy;
…
(e)any submission accompanying or relating to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality;
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure…"
In addition to the above matters, pursuant to cl 41 of TPS 4, in considering an application for development approval in the "Residential" zone (which this is) regard is also to be had to a number of other matters including:
"(f)[enhancing] the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock.
(g)[ensuring] compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping."
Clause 78 of TPS 4 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. The following policies, referred to by the parties during the course of the hearing, have been formulated and adopted by the Council under this provision of the Scheme:
(a)Policy 3.8 Residential Car Parking (Residential Car Parking Policy);
(b)Streetscape and Neighbourhood Character (R15 and R20 Zones) Policy (Streetscape Policy).
Subclause 78(8) of TPS 4 provides that a planning policy prepared under cl 78 shall be consistent with the Scheme and where any inconsistencies arise, the provisions of the Scheme prevail.
Respondent's arguments
The respondent contended that the proposed carport does not meet the locational standards of the City's Residential Car Parking Policy, and is inconsistent with the setback objectives of the City's Streetscape Policy. The respondent had no objection to the existing hardstand car parking space remaining in its current location.
The respondent submitted to the Tribunal that the intent of the policies was to assist in the development of attractive streetscapes and to reduce where possible the visibility of car parking structures from the perspective of the primary street. The Tribunal's attention was drawn to the possible locations for car parking spaces and structures specified in the Residential Car Parking Policy. These included, in order of acceptability:
"1.Rear Access
Carparking structures located to the rear of a property behind the dwelling, not visible from the primary street.
2.Secondary Street
Car parking structures located off a secondary street behind the dwelling, not visible from the primary frontage of the dwelling.
3.Front Access
Access off the primary street frontage to car parking structures located at the rear of the property (++).
4.Side of dwelling
Carport located behind the primary building line, along side the dwelling (##)
5.Front of dwelling
Carports located forward of the primary building line (in front of the dwelling) (##)
(++)Where a more acceptable method of access is available the Council will not approve access from a principal street unless such access is in accordance with the accepted existing pattern of access in the immediate vicinity.
(##)Garages, roller doors or other structures or features deemed visually impermeable will not generally be permitted to be built forward of the front or primary building line. These structures will need to be transparent in design, being visually permeable (carport), with unobscured visibility of the entrance, thereby not dominating the frontage of the property. This will only apply where no other option is available."
The respondent submitted that as there is a right‑of‑way at the rear of the subject land from which alternative access can be obtained, the location of the carport in the front setback area would be non‑compliant with the Residential Car Parking Policy. The respondent acknowledged that the policy itself considered the issue of discretion relating to approving a variation to the acceptable location criteria. Mr Ford, who is a planning officer at the City of Subiaco and was called as a witness on behalf of the respondent, argued that in this instance it was not appropriate to vary the acceptable location of on‑site car parking as the proposal did not satisfy any of the circumstances specified in the policy. He reached that position for the following reasons:
1.Car parking structures can be provided in an alternative location on the subject land. Mr Ford asserted that it was possible to design a double‑width hardstand or car parking structure at the rear of the subject land accessed from the right‑of‑way that would meet the relevant development standards and policies of the City.
2.The topography of the subject land does not prevent the provision of vehicular access from the right‑of‑way. Mr Ford substantiated this assertion by referring to the approved ancillary accommodation which was previously a garage servicing the existing dwelling, accessed off the right‑of‑way and by reference to the amended plans submitted by the applicant which include an "Alternative Parking Area" at the rear of the site with access via the right‑of‑way.
3.There are no examples of existing car parking structures within the front setback area in the "immediate vicinity", as defined in the Residential Car Parking Policy.
4.The materials of the proposed carport do not match the existing dwelling and that this, together with a reduced front setback, would not enhance the desired streetscape. It was Mr Ford's opinion that the proposed carport would further compromise the existing streetscape.
The respondent also considered that the proposal was inconsistent with its Streetscape Policy as it failed to satisfy the following setback requirements specified in the policy:
"The front setbacks of any residential development (new dwellings or alterations to existing dwellings) should:
•respect the established setback pattern in the street block; or
•where the setback of the two adjoining dwellings vary, the setback should be approximately mid‑way between those of the adjoining dwellings.
The respondent acknowledged that the streetscape in this location was characterised by different forms of development, incorporating front boundary walls and other hardstanding areas, but maintained that a carport within the front setback area of the subject land would further contribute to the degradation of the streetscape. It was on this basis, the respondent asserted that the location of a carport in the front setback area would be contrary to the principles of the respondent's Streetscape Policy, which is to achieve a rejuvenation of degenerated streetscapes.
The respondent further argued that the proposal did not respect the prevailing setback pattern in the street block as 89 percent of the properties within the street block demonstrated a consistent front setback of around 6.5 metres. Mr Ford also considered the proposal in light of the respondent's draft Streetscape and Building Height Standards for R15 and R20 Zones policy and found that in the context of the "surrounding development", as defined in the policy, there was only one example of a car parking structure within the setback area at No 13 Kanimbla Road and that all other development within this defined area met the standards of the respondent's Residential Car Parking Policy and Streetscape Policy. Mr Ford formed the view that "there is not an acceptable existing pattern of parking structures within the immediate proximity of the subject site" and as such, the proposed carport would have a detrimental impact on the streetscape and character of the locality. The applicant, however, disputed the area as defined by Mr Ford and produced an alternative plan, which increased the area of consideration (Exhibit 3).
Applicant's arguments
Mr Dykstra told the Tribunal that the applicant was an elderly lady, who parks her car in the hardstand car parking bay located in the front setback area for safety and security reasons. According to the applicant, the proposed carport will ensure that the car is shaded in the summer and that dry access will be achieved from the car to the front porch during the winter months. The applicant's case focused on the following four points in support of the proposed development:
1.The proposal does not conflict with the respondent's Town Planning Scheme and with the exception of the two local policies, the proposal would have been "as of right" under the Design Codes;
2.The blanket application of the respondent's policies is inappropriate and not responsive to the variety of built form and car parking found in Kanimbla Road;
3.The proposal is compliant with objectives of the respondent's policies and hence the respondent could have exercised its discretion to approve the application; and
4.The proposal responds to the constraints of the lot and the design would contribute positively to the streetscape and amenity of the dwelling.
The applicant led evidence from Mr Maiorana, who is a town planning consultant. Mr Maiorana asserted that through the use of consistent colours, similar roof pitch and similar materials as the existing dwelling the proposed carport would in fact enhance the visual amenity of the streetscape principally as it would soften the visual impact of the boundary (parapet) wall, which is located on the adjoining property to the north. Mr Maiorana also considered that, as the structure was visually permeable it would not detract from the presentation of the existing dwelling to the street and that its form would emphasise and reinforce the character of the existing dwelling. He did not agree with Mr Ford's assertions that the proposed carport would cause the streetscape to degenerate. He maintained that the proposal would assist in rejuvenating the streetscape, which accorded with the objectives of the respondent's policies.
Mr Maiorana described the streetscape of Kanimbla Road as:
"… [D]efined by a variety of architectural styles. It reflects various periods of development, various forms of development and certainly development that's occurred perhaps with significantly less controls in place in terms of – and concern for visual amenity. There are certainly a lot of properties that have high boundary walls, for example. There are some more traditional homes but also a number of homes that, … reflect re‑development along the street and I think this mix and variety of styles certainly gives an overall impression of a degenerated streetscape.
It certainly is an ill‑defined or poorly or difficult to define pattern of setbacks [sic] and certainly the streetscape in itself is certainly not intact in terms of a very traditional streetscape …"
He considered that the existing streetscape rhythm in Kanimbla Road had already been affected by developments within the street setback area. He produced photographs to show other carport structures in the front setback area in Kanimbla Road. In light of these existing developments, Mr Maiorana was of the opinion that the proposed carport represented a negligible variation to the rhythm of the existing streetscape.
Furthermore, Mr Maiorana contended that the applicant's amenity in terms of safety, security and convenience would be enhanced significantly by the provision of a carport in the front setback area. Whereas, he considered the requirement to locate the carport at the rear of the property to be unreasonable as it would require significant modification to the rear yard, including the decommissioning and removal of the existing functioning outside toilet. That, he said, would be unduly onerous for the applicant.
Planning issues
Clearly the main planning issue as emerges from the evidence relates to streetscape. The respondent has prepared a number of policies, pursuant to its powers contained in cl 78 of TPS 4, that address the need to recognise the importance of protecting streetscapes whilst acknowledging the need for reasonable access to parking of private vehicles. Mr Maiorana in cross‑examination agreed that it was appropriate for the respondent to prepare policies that were intended to improve the amenity of the locality, particularly in terms of rejuvenating degraded streetscapes. He also accepted that the Residential Car Parking Policy and the Streetscape Policy constituted local planning policies, which provided alternative requirements to those expressed in the Design Codes.
In assessing the streetscape of Kanimbla Road, the extent of the area under consideration differed between the parties. Mr Maiorana explained that his assessment related to the broader surrounding area (as can be seen from the photographs provided in evidence), rather than the area defined under the respondent's policies. Whereas the respondent, in determining the acceptable existing pattern of parking within the street setback area, considered the "immediate vicinity" being defined, under the Residential Car Parking Policy, as two to three houses either side or opposite the subject site. In relation to establishing setback patterns, the respondent examined the setback patterns of the nineteen residential lots in the subject street block fronting Kanimbla Road and further considered the development in the context of the definition of "surrounding development" as defined in the City's draft Streetscape Policy, that being the five properties on either side of the proposed development on both sides of the street and to the rear of the property.
In order to gain a full appreciation of the streetscape of Kanimbla Road, a view was held on 24 June 2005. Both the applicant and respondent were present through their representatives and the parties agreed that the observations were to be treated as evidence before the Tribunal.
The view confirmed, that in the broader context, there are a number of different forms of development within the street setback area in Kanimbla Road. These included carports within the front setback area of several lots on both sides of Kanimbla Road, including No 13 Kanimbla Road and No 27 Hardy Road, and a substantial solid front wall screening the private outdoor areas of a grouped dwelling development located on the opposite side Kanimbla Road to the subject land. As well, there were also at least four other hardstand car parking bays on lots within the street block on the same side of Kanimbla Road as the subject land.
Notwithstanding these intrusions, there was a defined setback pattern for lots with their primary street frontage onto Kanimbla Road, within the street block particularly to the original dwellings at No 3, No 7 and No 9, which, with the exception of No 13, was reflected in the new development.
The dwelling immediately to the north of the subject land (No 26 Hardy Road) has Kanimbla Road as its secondary street frontage and as such a significant portion of that dwelling was setback approximately 2.0 metres from Kanimbla Road. There was also a boundary wall that extended along the common boundary with the subject land, setback approximately 5.5 metres from Kanimbla Road, which was visually intrusive in the streetscape.
The right‑of‑way at the rear of the subject lot was paved and well utilised by other lots within the street block. A considerable number of dwellings on both sides of the right‑of‑way had carports/garage structures accessing off the right‑of‑way. The view also confirmed that additional car parking could be accommodated at the rear of the subject land.
The Tribunal's view
On the evidence, the Tribunal does not consider that the proposed carport will contribute positively to the streetscape as it will detract from the cohesive presentation of the row of original dwellings, which helps to establish a consistent setback pattern for the street. In addition, the carport, although visually permeable and with detail intended to reflect the design of the existing dwelling, will form a dominant visual element in front of the existing dwelling that will detract from the public interface between the dwelling and the street. The proposed carport may reduce the impact of the boundary wall on the northern boundary by hiding it, but given that the carport will protrude significantly into the front setback area, being setback 1.6 metres from the front boundary, it will be visually prominent in the street and disrupt the streetscape. The Tribunal is cognizant of the need to provide suitably secure car parking facilities within the inner urban areas, however, in this instance, there is a viable alternative available. Consequently, the Tribunal considers the proposed carport to be inconsistent with the orderly and proper planning and the conservation of the amenity of the locality and does not accord with the sound planning principles encompassed in the respondent's planning policies.
Orders
The orders of the Tribunal are:
1.The application for review is dismissed; and
2.The decision of the respondent is affirmed.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
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