Waller and City of Subiaco
[2006] WASAT 328
•10 NOVEMBER 2006
WALLER and CITY OF SUBIACO [2006] WASAT 328
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 328 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:270/2006 | 19 OCTOBER 2006 | |
| Coram: | MR J ADDERLEY (SESSIONAL MEMBER) | 10/11/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | VIVIENNE WALLER CITY OF SUBIACO |
Catchwords: | Carport Front setback area Rear access Right of way Additional accommodation Private open space Street setback alignment Impact on streetscape character Crossover rationalisation Vehicle/pedestrian conflict Traffic volumes Precedent |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 27(3), cl 27(4), cl 27(4)(b), cl 27(4)(c) Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia (2002), cl 3.2.3, cl 3.2.3 A3.4, cl 3.2.7, cl 3.2.7 A7, cl 3.2.7 P7, cl 3.2.3, cl 3.2.3 A3.1, cl 3.2.3 A3.2, cl 3.2.3 A3.3, cl 3.2.3 A3.4, cl 3.5.4, cl 3.5.4 A4.1, cl 3.5.4 A4.2, cl 3.5.4 A4.3 Town Planning and Development Act 1928 (WA), s 5AA |
Case References: | Nil Nil |
Orders | 1. The application for review of the decision of the City of Subiaco to refuse approval of an application for the construction of a double carport in the front setback area of Lot 118 (No 14) Willcock Avenue, Daglish is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WALLER and CITY OF SUBIACO [2006] WASAT 328 MEMBER : MR J ADDERLEY (SESSIONAL MEMBER) HEARD : 19 OCTOBER 2006 DELIVERED : 10 NOVEMBER 2006 FILE NO/S : DR 270 of 2006 BETWEEN : VIVIENNE WALLER
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Carport - Front setback area - Rear access - Right of way - Additional accommodation - Private open space - Street setback alignment - Impact on streetscape character - Crossover rationalisation - Vehicle/pedestrian conflict - Traffic volumes - Precedent
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 27(3), cl 27(4), cl 27(4)(b),
cl 27(4)(c)
Planning and Development Act 2005 (WA)
(Page 2)
Residential Design Codes of Western Australia (2002), cl 3.2.3, cl 3.2.3 A3.4, cl 3.2.7, cl 3.2.7 A7, cl 3.2.7 P7, cl 3.2.3, cl 3.2.3 A3.1, cl 3.2.3 A3.2, cl 3.2.3 A3.3, cl 3.2.3 A3.4, cl 3.5.4, cl 3.5.4 A4.1, cl 3.5.4 A4.2, cl 3.5.4 A4.3
Town Planning and Development Act 1928 (WA), s 5AA
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant : Ms C Mack (Acting as Agent)
Respondent : Ms N Goode (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 An application for a double carport in the front setback area of residential premises located in Willcock Avenue, Daglish, in the City of Subiaco, was refused by the respondent on grounds that the proposal did not comply with relevant requirements of the Residential Design Codes of Western Australia 2002 and the respondent's Residential Car Parking and Crossover Rationalisation policies.
2 The applicant sought a review of the respondent's decision on grounds that the application should be approved because it represents the appropriate locational solution to the aspiration of the applicant to provide an expanding family's requirements for additional accommodation, secure private open space and weather protected car parking on the property.
3 The Tribunal heard evidence from the respondent as to the reasons why the proposal did not achieve the performance criterion of the Codes relating to car parking access and evidence that the proposal was able to be more appropriately accommodated at the rear of the premises with access from an existing, appropriately proportioned, paved right of way in accordance with the intent of the respondent's Residential Car Parking policy. As such, the proposal was inconsistent with the Codes and the policy.
4 It was argued that the applicant's proposal was contrary to the respondent's Crossover Rationalisation policy, which sought to minimise the number of street crossovers in the interest of maximising 'green space' and facilitating kerbside parking. An expert witness provided evidence that reduction in the usage of vehicle crossovers would lead to lower levels of vehicle/pedestrian conflict.
5 The respondent provided evidence of the streetscape character of the locality, demonstrating the pleasant quality of front gardens, tree lined verges and the consistent setback alignment of buildings. The respondent's Daglish Precinct policy describes that the desired future character of the locality would require that new development should reflect the nature of the typical interwar buildings in the street block or immediate vicinity including, amongst other matters, front and side setbacks.
6 The respondent argued that approval of the proposed carport in the front setback was inconsistent with the setback of buildings in the street
(Page 4)
- and would compromise the character and quality of the streetscape. Approval of the proposal would set an undesirable precedent for similar approvals which would further erode the character of the street.
7 The applicant argued that the proposal for a double carport in the front setback area, accessed from the street, was appropriate because there was insufficient space at the rear of the premises to meet the activity and development needs of the applicant's expanding family. The applicant intends to build additional accommodation for family relatives and maintain private open space for a secure play area for young children, the space requirements of which would preclude the use of the rear of the premises for car parking.
8 The applicant argued, therefore, that the performance criterion of the Codes relating to access were complied with and that otherwise the proposal complied with other aspects of the Code requirements in relation to setback of carports and building design.
9 The applicant further submitted that the proposal was architecturally sensitive and compatible with the streetscape of the locality and had the support of neighbours in the vicinity.
10 The Tribunal was unconvinced as to the applicant's argument that the rear of the premises was unable to be used for car parking in the circumstance that no plans had been submitted to or approved by the respondent for any other development on the land. The Tribunal was also unconvinced that preliminary site planning to accommodate the proposed uses had been done with any rigour to demonstrate that car parking at the rear of the property could not also be fitted in.
11 The Tribunal, therefore, accepted the respondent's argument that it is feasible and practical to provide car parking accessed from the right of way at the rear of the premises.
12 The Tribunal was satisfied that the respondent had demonstrated, on merit, that the proposed carport would be out of character with the prevailing streetscape if it was allowed to be constructed in the front setback area.
13 The Tribunal was satisfied that the proposal was inconsistent with the relevant requirements of the Codes in relation to vehicular access and inconsistent with the respondent's Residential Car Parking and Daglish Precinct policies.
(Page 5)
14 The application for review of the respondent's decision to refuse approval of a double carport in the front setback of premises at Lot 118 (No 14) Willcock Avenue, Daglish was therefore dismissed.
Introduction
15 This is an application for the review of the decision of the respondent not to grant planning consent for the construction of a double carport in front of a dwelling situated at No 14 (Lot 118) Willcock Avenue, Daglish.
16 Application for the proposed double carport was submitted to the respondent on 17 May 2006.
17 The respondent refused the application and conveyed the decision and reasons for the refusal to the applicant by correspondence dated 13 July 2006.
18 The applicant sought a review of the respondent's decision by application to the State Administrative Tribunal on 7 August 2006.
The proposal
19 The proposed brick and tile double carport of 6 metres width, 5.4 metres length and 4.2 metres height is intended to be located within the front setback of the residential lot at Lot 118 (No 14) Willcock Avenue, Daglish.
20 The existing dwelling on the lot is set back about 9.5 metres from the Willcock Avenue frontage. The proposed carport is intended to be located in front of the dwelling which adjoins a small existing, but unused, garage on the northern side of the lot. The carport would take advantage of an existing crossover and driveway from the street which serves the unused garage. The crossover and driveway is proposed to be widened to about 6 metres width in conjunction with the erection of the carport. The carport structure will be set back 3 metres from the Willcock Avenue frontage.
21 The proposed carport is designed to be consistent with the architectural character of the existing dwelling.
The land and the locality
22 The land subject of the application is Lot 118 (No 14) Willcock Avenue, Daglish, which is within a residential zone coded 'R15' under the City of Subiaco Town Planning Scheme No 4 (TPS 4).
(Page 6)
23 Lot 118 Willcock Avenue is a regular shaped residential lot of 653 square metres area in a locality characterised by similar sized and shaped lots generally having frontage to a 'grid' residential street pattern and otherwise serviced by rear laneways of about 6 metres width. Consistent with this pattern, Lot 118 is serviced from the rear by a laneway accessible from the surrounding streets.
24 The immediate locality is featured by single dwellings set in pleasant gardens off tree lined streets. Dwellings in Willcock Avenue appear to be set back from the street on a fairly consistent alignment of about 9 – 11 metres, generally matching the setback of the dwelling on Lot 118.
Town planning scheme and policy provisions
25 The City of Subiaco Town Planning Scheme No 4 regulates land use and development control of the locality. Under TPS 4, residential development is required to conform with the Residential Design Codes of Western Australia 2002 (the Codes).
26 As mentioned earlier, Lot 118 is within a residential zone, density coded R15 under TPS 4. Accordingly, the general site requirements applicable to the R15 density, as set out in Table 1 of the Codes, are a relevant consideration to site planning.
27 Clause 27(3) of TPS 4 empowers the respondent to determine the application and lists matters which the respondent is to have regard to in cl 27(4) including:
"(b) any relevant planning policies;
(c) a statement of planning policy of the Western Australian Planning Commission; …
(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."
28 In respect of TPS 4, cl 27(4)(b), the respondent has adopted the following policies that have relevance to this application:
(Page 7)
- • Daglish Precinct planning policy
• Residential Car Parking policy
• Crossover Rationalisation policy.
29 In respect of TPS 4, cl 27(4)(c), the relevance of the Codes is emphasised. The Codes were adopted by the Western Australian Planning Commission as a Statement of Planning Policy under s 5AA of the Town Planning and Development Act 1928 (WA).
30 Lot 118 Willcock Avenue lies within an area where the Daglish Precinct policy applies. Objectives for the precinct include, amongst others, reference to an intent:
"• to protect and enhance a well established and highly regarded Precinct for residential purposes;
• to conserve the extensive Daglish Estate Workers Housing Conservation Area as well as many individually listed houses;
• to enhance the residential streetscape, pedestrian and public transit amenity of the Precinct."
31 The Daglish Precinct policy, under the heading Desired Future Character refers to"Interwar housing close to the railway line". It is understood that Lot 118 Willcock Avenue is situated in this area. The policy prescribes that "any renovation or new development should reflect the scale, character, details and materials of Interwar buildings within the street block or immediate vicinity including front and side set backs, verandahs and fencing".
32 The respondent's Residential Car Parking policy, in its introductory section, expresses the desire to minimise the detrimental impact car parking structures can have on existing streetscapes and refers to planning concerns including:
"• car parking structures which obscure the view of dwelling …
• car parking structures which conflict with an existing pattern of building setbacks."
33 Amongst other goals, the objectives of the policy include an intent:
"• to assist the development of attractive streetscapes;
(Page 8)
- • to reduce where possible, the visibility of car parking structures from the perspective of the primary street."
34 In terms of preference for the location of car parking spaces and structures on a residential lot, the policy identifies the following order of acceptability:
1. Rear access.
2. Secondary street.
3. Front access ... to car parking at rear of property.
4. Side of dwelling.
5. Front of dwelling ... carport located forward of the primary building line.
35 The Policy further notes that:
"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 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 least acceptable option is to locate car parking structures within the front setback area."
36 The Residential Car Parking policy identifies circumstances where the respondent may approve a variation to the acceptable location of on site car parking. These include:
• where the nature of existing development is such that the car parking requirement cannot be provided elsewhere;
• where the topography of the land is such that provision of vehicular access behind the street setback area is unduly difficult to achieve;
(Page 9)
- • where there is, in the immediate vicinity of the subject site in the same street, an acceptable existing pattern of parking within the street setback area;
• where, in the opinion of the Council, the proposed parking arrangement would enhance the desired streetscape; and
• where existing car parking has been occurring and no other alternative option exists.
37 The respondent's Crossover Rationalisation policy refers to vehicle crossovers that are "no longer used".
38 The objective of the policy is to "minimise the number of vehicle crossovers to primary streets and encourage the greening of street verges". In order to achieve this objective, the policy prescribes that "where vehicle access is available from a secondary street or rear laneway, the City will seek to rationalise access points to a site by the removal of any existing crossovers to the primary street and reinstatement of the verge".
39 The relationship of the Residential Design Codes to TPS 4 has already been outlined. In turn the Codes, whilst providing a comprehensive basis for control of residential development, acknowledge that "Where particular matters of a local nature demand particular planning controls, it is intended that the Codes should be complemented by Local Planning Policies adopted under the town planning scheme".
40 Part 3 Element 5 of the Codes refers to Access and Car Parking. The explanatory notes associated with Element 5 discusses the Location of Parking Spaces, describing that their location is a major factor in amenity as well as security and safety. Of various possible choices in locating car parking, the notes state that:
"The advantages of not having vehicle access directly from the primary street are:
· the streetscape will be more attractive;
· there will be fewer driveways and so more space for kerbside parking for visitors; and
· there will be fewer conflicting movements of vehicles."
(Page 10)
41 The performance criterion to be met for Vehicular Access is described at 3.5.4 of the Codes as "Vehicular Access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape".
42 The Acceptable Development standards deemed to meet the Performance Criterion 3.5.4 of the Codes include:
"A4.1 Access to on-site parking to be provided, where available, solely from a right-of-way available for the use of the relevant lot and adequately paved and drained from the property boundary to a constructed street, or from a secondary street where a right-of-way does not exist.
A4.2 Primary or secondary street driveways, where their provision is necessary, are limited as follows:
· driveways serving four dwellings or less not narrower than 3m at the street frontage;
· subject to a minimum width of 3m, driveways not to occupy more than 40 per cent of the frontage of a property, excluding any part of that frontage required for an access leg to a battleaxe lot;
· no single driveways wider than 6m and driveways in aggregate no greater than 9m for any one property."
44 The explanatory notes for Element 2 consider the acceptability of carports within street setback areas in the context of a generalisation that "the street setback area should be open, enabling a clear view of the building from the street, and vice versa". The notes go on to explain that: "Because so many houses in established suburbs were built without
(Page 11)
- provision for private motor vehicles, street-side parking and parking within street setback areas have become essential, especially where rear access to the property is not available. ... Consequently it is accepted that, where no feasible alternative exists, the street setback area may be used for carports".
45 The performance criterion to be met for the Set Back of Garages and Carports is described at 3.2.3 of the Codes as "The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street and vice versa".
46 The relevant Acceptable Development standards to meet the Performance Criterion include:
"A3.1 Garages and carports located behind the street setback line.
A3.2 Garages and carports built up to the boundary abutting a private street or right-of-way which is not the principal frontage for the dwelling, with manoeuvring space of at least 6m, located immediately in front of the opening to the garage or carport and permanently available.
A3.3 Garages set back 1.5m from a secondary street.
A3.4 Carports within the street setback area, provided that the width of the carport does not exceed 50 per cent of the frontage at the building line and the construction allows an unobstructed view between the dwelling and street, right-of-way or equivalent."
47 Performance Criteria 3.2.7 - Building Design, specifies at P7 that, "Buildings designed to enhance an existing desired streetscape, where the Council has identified the need for design controls"may be satisfied by Acceptable Development standard A7:
"Buildings that comply with the provisions of a Special Control Area or equivalent Local Planning Policy made under the Scheme in respect of the design of carports and garages, the colour, scale, materials and roof pitch of buildings including outbuildings, the form and materials of retaining walls and the extent to which the upper levels of buildings as viewed from the street should be limited."
(Page 12)
The decision of the respondent
48 The respondent refused the application for erection of a double carport at Lot 118 Willcock Avenue, Daglish on 13 July 2006 for the following reasons:
1. The proposed double carport in the front setback area of a lot with right of way access to the rear does not meet the requirements of the City's Residential Car Parking policy.
2. The proposed double carport in the front setback area of a lot with right of way access to the rear does not meet the Acceptable Development provisions or the relevant Performance Criteria of cl 3.5.4 of the Residential Design Codes.
3. The proposal includes the widening of a crossover which does not meet the aims and objectives of the City's Crossover Rationalisation policy.
The respondent's argument
49 The respondent's argument relied on the proposition that the proposed double carport accessed from Willcock Avenue would be detrimental to the streetscape quality of the locality and that an increased level of access from the street would contribute to the potential for pedestrian/vehicle conflict and reduced road safety.
50 Witness for the respondent, Mr G Diosan, a statutory planning officer employed by the respondent, informed the Tribunal of three previous applications in 2005 within the City of Subiaco where the respondent had refused to allow car parking structures in the front setback areas of residential properties. In each case, following an appeal, the respondent's decision had been upheld, thus demonstrating a consistent application of the respondent's development control instruments and policies.
51 Mr Diosan referred to the respondent's Residential Car Parking policy and highlighted that the most preferred car parking location is to the rear of a lot with access from a right of way. The least acceptable option, according to the policy, is to locate car parking structures in a front setback area. In the case of Lot 118 Willcock Avenue, it is possible to construct a car parking structure to the rear of the property from an existing right of way in such a way as to comply with vehicle manoeuvring and sightline requirements and maintain more than
(Page 13)
- 100 square metres open space for outdoor living purposes at the rear of the existing house.
52 In the case of the proposed double carport at Lot 118 Willcock Avenue, Mr Diosan pointed out that no other property in Willcock Avenue has a car parking structure in the front setback area. Aerial photography of the locality referred to by Mr Diosan illustrated a consistent building setback alignment of between 9.5 to 11.5 metres for lots on the same side of the street as Lot 118.
53 Mr Diosan offered the opinion that a double carport in the front setback area of Lot 118 would be detrimental to the streetscape as the structure would be situated forward of the prevailing setback of buildings in the street.
54 Mr Diosan responded to the stated intent of the applicant to pursue development of "ancillary accommodation" at the rear of Lot 118 in order to accommodate additional family members in the future. Mr Diosan indicated that, in his opinion, such accommodation could be constructed in addition to a double car parking structure whilst still maintaining adequate open space to meet site planning requirements of the Codes. At this juncture, no application has been submitted to the respondent for approval of "ancillary accommodation".
55 In relation to provisions of the Codes, Mr Diosan emphasised the relevance of Performance Criterion 3.5.4 Vehicular Access and the Acceptable Development standard A4.1, which holds that "Access to on-site parking to be provided, where available, solely from a right-of-way available for the use of the relevant lot ... " Mr Diosan advised that the proposal did not meet this acceptable development standard, notwithstanding that the car parking requirements for the property could be achieved from the right of way in the manner anticipated by standard A4.1.
56 Mr Diosan argued that in addition to non-compliance with the Acceptable Development standard, the proposal remained inconsistent with Performance Criterion 3.5.4 because the width of the existing crossover would be increased, safety would not be enhanced and the presence of the structure would detract from the streetscape.
57 In relation to the respondent's Crossover Rationalisation policy, Mr Diosan argued that the proposal to widen an existing single width crossover and increase the extent of hard surface in the street verge area was contrary to the objective of the policy, which was designed to
(Page 14)
- minimise the number of crossovers and encourage "greening" of street verges.
58 In the absence of other car parking structures in the front setback area in Willcock Avenue, Mr Diosan offered the opinion that approval of the proposal would constitute an undesirable precedent for more structures to be built in front setback areas and detract from an otherwise attractive and consistent streetscape.
59 Mr DN Veal, a qualified and experienced traffic and transport engineer, appeared as a witness for the respondent.
60 Mr Veal described the laneway giving access to the rear of Lot 118 as adequate for vehicle access and associated manoeuvring. The laneway is 6 metres wide with speed humps to slow vehicles.
61 Mr Veal observed that the respondent's policy of promoting rear laneway access and parking whilst discouraging parking at the front of premises has road safety benefits as well as aesthetic and amenity benefits. The likelihood of vehicle/pedestrian conflict at the front of the property is likely to be greater than for a rear laneway, traffic calmed with speed humps. Pedestrian traffic is likely to be higher on the street than along the laneway.
62 Under examination, Mr Veal acknowledged that Willcock Avenue has a low level of through traffic and that traffic hazard is of a low order.
63 Mr Veal agreed that the majority of houses in the street utilise front setback parking, but affirmed his view that approval of the proposal for a double carport with additional width driveway would encourage an increase in vehicle movement activity, multiplied if the precedent was taken up on other properties in the street.
The applicant's argument
64 The applicant's argument in favour of the proposal is founded on the needs of a growing family requiring additional accommodation for family members, the need to maintain safe private open space and a desire to provide weather protection for family vehicles. The sum of these aspirations leads to a conclusion that the only practical disposition of these purposes on Lot 118 is one where an intended expansion for ancillary accommodation and the provision of safe and private open space should occur at the rear of the premises. It is therefore logical that provision of car parking shelter, which would otherwise compromise the
(Page 15)
- spatial needs of the other purposes, should be located in the front setback area of Lot 118.
65 The applicant's representative, Ms C Mack, provided the Tribunal with a Statement of Issues, Facts and Contentions which detailed the argument in support of the proposed double carport application.
66 Ms Mack explained that the proposed carport was designed to complement the character and detail of the existing house and would be constructed of matching materials. The carport will enhance the front setback area because it fits in with the architectural character of the property and will therefore enhance the broader character of the neighbourhood and the local streetscape as required by the respondent's Daglish Planning Precinct policy. Opinions sought from neighbours in respect of site and design details of the proposed double carport in the front setback area resulted in 100% support. On these grounds, the proposed carport meets the Acceptable Development standard A7 relevant to the Codes' Performance Criteria 3.2.7 - Building Design.
67 Ms Mack also pointed out that the proposed carport conformed with Code Performance Criterion 3.2.3 - Setback of Garages and Carports, given that the carport fully complied with Acceptable Development standard A3.4 which prescribes a proportional limit to the width of the carport and an obligation to maintain an unobstructed view through the structure between the dwelling and the street.
68 Ms Mack expressed the opinion that the respondent's car parking policies are outdated and do not reflect the desires of residents. This opinion is affirmed by actual parking patterns observed on 16 properties in the locality. Of these, 10 utilise the front setback area for parking, one does not own a car, one utilises parking at the side of a dwelling and four are corner blocks with access to secondary streets.
69 Whilst acknowledging that the respondent's Residential Car Parking policy lists the location of car parking options in order of acceptability, Ms Mack contended that the Codes do not indicate preference.
70 Ms Mack described the applicant's intention to construct a 60 square metre area ancillary accommodation unit for elderly relatives at the rear of the property. Once constructed there would be insufficient room to allow for the erection of a double garage and maintain space sufficient for a children's play area. A small 'sewing room' built by the applicant's grandfather in 1932 and presently used as a 'cubby house' is located in the rear corner of the property. There is a desire to avoid
(Page 16)
- interfering with this building because of its historical significance to the family. This circumstance further constricts the opportunity to develop the rear of the property.
71 Ms Mack advised that use of the front set back area was inappropriate for private open space and use as a children's play area for reasons associated with the lack of privacy and security. In this regard, the interest of streetscape aesthetics should not come before those of the safety and security of young children.
72 With regard to Performance Criterion 3.5.4 and Acceptable Development standard A4.1, Ms Mack contended that this requirement is only applicable to situations where rear on site parking is to be provided. In the case at hand, it is not physically possible for the proposed front setback parking to be accessed from the right of way serving No 14 (Lot 118) Willcock Avenue. In consequence, Acceptable Development standards A4.2 and A4.3 are more appropriately relevant and are able to be satisfied by the applicant's proposal.
73 In respect to the respondent's Crossover Rationalisation policy, Ms Mack noted that the policy was intended to manage the rationalisation of 'disused' crossovers. As the existing crossover at Lot 118 will continue to be used, the policy has no application and the respondent is inappropriately applying provisions of the policy in order to refuse the applicant's proposal.
Analysis
74 The respondent's argument relies substantially on the application of the Codes and relevant policies made under the TPS 4. Policies must be accorded substantial weight in the consideration of the application because they are directly assigned relevance and importance in guiding discretional decision making by both the TPS 4 and the Codes. Nevertheless, it is fundamental that the respondent's decision to refuse the application for a double carport in the set back area of Lot 118 Willcock Avenue needs to be demonstrated to be sound on the actual merits of the case.
75 The applicant has sought to demonstrate that the respondent has misapplied provisions of the Codes and policies and that, in addition, the merits of the application are such that it should be approved regardless of particular policy provisions because they are out of date with contemporary needs or because they have been misapplied or are irrelevant to the circumstances of the application.
(Page 17)
76 With regard to the applicant's case, the proposition that development of a garage or carport at the rear of the premises was not an option because of intentions to otherwise construct ancillary accommodation behind the existing residence, is not able to be sustained for two reasons. Firstly, there is no approval by the responsible planning authority for any proposed ancillary accommodation, nor is there a substantive application for such a proposal. There is, therefore, no certainty that any approval for ancillary accommodation would be forthcoming, or, if it was, then in what form and disposition it would take on the land. Secondly, there is no clear evidence before the Tribunal that the erection of ancillary accommodation would preclude the possibility of constructing a parking structure at the rear of the property, notwithstanding the applicant's argument in pursuit of other allegedly competing uses. Whilst the applicant provided an indicative sketch to illustrate a potential disposition of structures and activities at the rear of the property, excluding rear access car parking, the Tribunal remained unconvinced that there was sufficient rigour displayed in examining site plan options or sufficient detail in the sketch to reach any conclusions as to the capacity to accommodate all the future development aspirations of the applicant.
77 Given, then, that there is presently an uninhibited potential to physically accommodate a car parking structure at the rear of the premises, Acceptable Development standard A4.1 has relevance as a means to achieve the Vehicular Access performance criterion of the Codes. Significantly, the Acceptable Development standard is worded "access to on-site parking to be provided, where available, solely from a right of way available for the use of the relevant lot ... ".There is no ambiguity that the intention is that a lot that has access from a right of way should preferably obtain access to on site parking on the lot from that right of way. This proposition is reinforced by reference to the performance criterion that seeks to minimise the number of crossovers to the street, and the associated explanatory notes of the Codes that refer to "The advantages of not having vehicle access directly from the primary street" (page 65).
78 The applicant's argument that the proposed double carport in the front setback area conforms with the Code's Acceptable Development standard A3.4 for the performance criterion requirements for the Setback of Garages and Carports 3.2.3 is rather a selective use of the Codes and ignores the context of the explanatory notes (page 48), which conditions the acceptability of carports in street setback areas to circumstances "where no feasible alternative exists".Where another feasible alternative exists, as is the case in this application, other Acceptable Development
(Page 18)
- solutions should be preferred. The respondent's Residential Car Parking policy is also to be given due regard in this circumstance. The policy makes it clear that the least acceptable solution is to locate a car parking structure within a front setback area and that a rear access to a car parking structure behind the dwelling should be preferred.
79 The question of compliance with the Codes' Building Design Performance Criterion 3.2.7 appears not to be of critical concern to a determination of this matter. The issue of compliance with local policy design controls by means of sensitive architectural design and the use of appropriate materials is not contested by the respondent other than in the context of the desire to maintain an overall setback of structures consistent with the character of the local streetscape.
80 It is the character of the streetscape that becomes the defining issue of this application. The applicant has argued that the proposed double carport structure would not adversely impact on the streetscape because it is sensitively designed to be compatible with the dwelling on Lot 118, it satisfies proportionality and visual transparency criteria of the codes, and it is fully accepted by neighbours in the vicinity.
81 The respondent's argument on the importance of the streetscape is substantially influenced by the Daglish Precinct policy, which has been adopted in order to preserve the character of the locality. The policy makes specific reference to housing close to the railway line and the desire for new development to reflect the scale, character, details and materials of buildings within the street block and including, importantly, a reference to front setbacks. Photographs of individual houses and front gardens in Willcock Avenue submitted to the Tribunal, in conjunction with aerial photography of the street block, provide a clear illustration of the pleasant character of the street. Significantly, the character is strongly influenced by the consistent building setback, the spacious front gardens and the tree lined street verge. It is clear from this visual evidence that the proposed carport structure at a 3 metre setback rather than the 9 or 10 metre setback prevailing in the street, would be a dominating feature palpably contrasting with the character of the area. Extended paving associated with the proposal and the consequent reduction of green space would reinforce the impact of the development.
82 The question of precedent must also be taken into account at this juncture, and given the general homogeneity of the street block in terms of streetscape character and prevailing building setbacks, the Tribunal would accept that approval of the present application would set a precedent for
(Page 19)
- further approvals that would have a consolidated detrimental impact on the presently valued visual character of the street.
83 The Tribunal is therefore persuaded by the strength of the respondent's case, which is founded in the application of relevant Code and policy provisions and reinforced by assessment of the particular merits of the application as it relates to the streetscape and amenity context of the locality.
84 The Tribunal is less convinced by the respondent's argument in relation to application of the Crossover Rationalisation policy. The policy displays some inconsistency in the wording of its introductory passage compared with the wording of its objectives and standards. A reading of the introduction clearly identifies that the policy is focused on 'no longer used'crossoversand 'disused' crossovers. The standards (or actions) refer to "removal of any existing crossovers to the primary street and reinstatement of the verge". The qualifier 'disused' has been discarded. This ambiguity within the policy rather compromises its application to the proposal in question wherein the existing crossover is undoubtedly still in use and is intended to be augmented.
85 The respondent's arguments with respect to safety concerns in the event of approval of a double carport in the front setback area with augmented driveway access from the primary street are acknowledged by the Tribunal, but are considered to be of only marginal importance in this matter. The respondent's expert witness agreed that traffic volumes in Willcock Avenue are at the low end of the scale and that traffic hazard is correspondingly low as well. In the circumstances, the Tribunal does not disregard the issue of pedestrian/ vehicle conflict but at the same time does not assign great weight to this aspect of the respondent's argument to disallow the application.
Conclusion
86 For the reasons set out in the body of this report, the Tribunal concludes that the application for review of the decision by the respondent to refuse the application for a double carport in the setback area of Lot 118 (No 14) Willcock Avenue, Daglish should be dismissed.
Orders
87 The application for review of the decision of the City of Subiaco to refuse approval of an application for the construction of a double carport
(Page 20)
- in the front setback area of Lot 118 (No 14) Willcock Avenue, Daglish is dismissed.
I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SESSIONAL MEMBER
4
0
5