West and Town Of Cambridge
[2008] WASAT 284
•28 NOVEMBER 2008
WEST and TOWN OF CAMBRIDGE [2008] WASAT 284
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 284 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:297/2008 | 16 OCTOBER 2008 | |
| Coram: | MS R MOORE (SENIOR SESSIONAL MEMBER) | 27/11/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is allowed | ||
| B | |||
| PDF Version |
| Parties: | CATHY WEST PATRICK PAUL TOWN OF CAMBRIDGE |
Catchwords: | Town planning Development application Single carport in front setback area Carport posts on the side boundary Whether adverse impact on the amenity of the adjoining property Whether adverse impact on the streetscape |
Legislation: | Planning and Development Act 2005 (WA), s 252 Residential Design Codes of Western Australia (2008) Town of Cambridge Town Planning Scheme No 1, cl 38(4) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent, made on 22 July 2008, to refuse development approval for the construction of a carport at No 80 (Lot 667) Holland Street, Wembley is set aside and a decision is substituted that development approval is granted subject to the following conditions:,(i) The development must be carried out in accordance with the amended plans drawn by Thorn Roofing Contractors date stamped received by the Town of Cambridge 21 May 2008. |
Summary | This matter involved an application for review of a planning development refusal by the Town of Cambridge for the construction of a single carport in the front setback area of No 80 (Lot 667) Holland Street, Wembley.,It was the Town of Cambridge's view that the proposed carport did not comply with the Town of Cambridge Residential Design Guidelines - Development Requirements and would have an adverse impact on the amenity of the adjoining property and the streetscape.,The applicant argued that the proposed carport would not have a significant impact on the adjoining property; that the setbacks were consistent with the existing streetscape; and that the proposal would make efficient use of space and maintain existing street parking.,The Tribunal agreed with the applicant and found that the carport would not have an adverse impact on the amenity of the adjoining property or on the streetscape and that the proposal did comply with the Town of Cambridge Residential Design Guidelines performance criteria for both buildings on a boundary and street setbacks.,The application for review was allowed and the proposed development was approved. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WEST and TOWN OF CAMBRIDGE [2008] WASAT 284 MEMBER : MS R MOORE (SENIOR SESSIONAL MEMBER) HEARD : 16 OCTOBER 2008 DELIVERED : 28 NOVEMBER 2008 FILE NO/S : DR 297 of 2008 BETWEEN : CATHY WEST
- PATRICK PAUL
Applicants
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development application - Single carport in front setback area - Carport posts on the side boundary - Whether adverse impact on the amenity of the adjoining property - Whether adverse impact on the streetscape
Legislation:
Planning and Development Act 2005 (WA), s 252
Residential Design Codes of Western Australia (2008)
Town of Cambridge Town Planning Scheme No 1, cl 38(4)
(Page 2)
Result:
Application for review is allowed
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Mr J Meggitt (Representative)
Solicitors:
Applicants : Self-represented
Respondent : Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of a planning development refusal by the Town of Cambridge for the construction of a single carport in the front setback area of No 80 (Lot 667) Holland Street, Wembley.
2 It was the Town of Cambridge's view that the proposed carport did not comply with the Town of CambridgeResidential Design Guidelines - Development Requirements and would have an adverse impact on the amenity of the adjoining property and the streetscape.
3 The applicant argued that the proposed carport would not have a significant impact on the adjoining property; that the setbacks were consistent with the existing streetscape; and that the proposal would make efficient use of space and maintain existing street parking.
4 The Tribunal agreed with the applicant and found that the carport would not have an adverse impact on the amenity of the adjoining property or on the streetscape and that the proposal did comply with the Town of CambridgeResidential Design Guidelines performance criteria for both buildings on a boundary and street setbacks.
5 The application for review was allowed and the proposed development was approved.
Introduction
6 These proceedings involve an application brought by Ms Cathy West and Mr Patrick Paul (applicants), pursuant to s 252 of the Planning and Development Act2005 (WA) (PD Act), for review of the decision of the Town of Cambridge (respondent, Town or Council) made on 22 July 2008 to refuse a development application to construct a single carport in the front setback area of No 80 (Lot 667) Holland Street, Wembley (site or subject site).
Site and locality
7 The subject site is No 80 (Lot 667) Holland Street, Wembley, on the corner of Grantham Street with a right of way to the rear. It is 658 square metres in area and contains an existing brick and tile single storey house.
(Page 4)
8 The subject site has an existing crossover with a paved driveway in the front setback area and an existing brick pier boundary wall with timber picket infill panels and vehicular gates. The proposed carport is to be constructed directly over the existing driveway and accessed via the existing crossover and gates.
9 The adjoining property to the south, No 78 Holland Street, is of a similar style and age. There is an existing solid painted face brick wall approximately 2 metres high separating this property and the subject site.
10 Holland Street is a residential street consisting of similarly sized lots containing primarily brick and tile houses with fairly consistent street setbacks.
Planning framework
11 The subject site is zoned 'Urban' under the Metropolitan Region Scheme. The subject site is zoned Residential R20 under the Town of Cambridge Town Planning Scheme No1 (TPS 1 or Scheme).
12 Clause 38(4) of TPS 1 lists matters the Council is to have regard to when determining an application for planning approval and includes the following:
…
(b) any relevant Planning Policy;
…
(e) any submission accompanying or related to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenities of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
13 According to the Town Planning Scheme Policy Manual (Policy Manual), the subject site is located within the Wembley Precinct 4.
14 The Town has also adopted Residential Design Guidelines (RDGs) which include development requirements for buildings on the boundary and street setbacks, and are relevant to this matter.
(Page 5)
Proposed development
15 The proposed development is the construction of a single carport within the front setback area of the subject site.
16 The carport is 4 metres wide by 5.5 metres long and will be constructed with six powdercoated steel posts supporting a steel roof frame and metal roof sheeting. Three of the 100 x 100 millimetre posts are to be positioned on the side (southern) boundary. The roof sheeting is to be set back 1 metre from the side (southern) boundary. The rear of the carport will be located 0.6 metres from the front of the existing house and the front of the carport will be set back 0.3 metres from the primary street boundary (Holland Street).
17 Access to the carport is to be via the existing crossover and timber vehicular gates.
18 The applicant has planning approval for the construction of a similar single carport with a side boundary setback of 1 metre. This application is for the same carport with a nil boundary setback to the south.
Respondent's decision
19 On 25 March 2008, the respondent approved a development application for the construction of a patio and carport at the subject site. The carport was approved with a 1 metre side boundary setback. When construction of the carport commenced, it was with a nil side boundary setback. A stop work order was issued by the respondent.
20 It was the evidence of Ms Cathy West, the applicant, that there was no intent to build contrary to the approved plans, however, due to the unclear drawings submitted by the builder, there was a different perception of the proposed structure by the applicant and the Town. The applicant consequently submitted a new development application for the carport clearly showing three posts with a nil side boundary setback and the roof sheeting over the structure set back 1 metre from the boundary.
21 The respondent's planning officer report prepared for Council recommended approval of the carport, as did the respondent's Development Committee.
22 At the Council meeting on 22 July 2008, the respondent resolved to refuse the development application and notified the applicant that:
(Page 6)
- Members were not prepared to support the application due to noncompliance with Clause 2.2 of the Town's Residential Design Guidelines.
The issues
23 The key issues arising from this review are whether the proposed carport satisfies the requirements of cl 2.1.1 and cl 2.2 of the RDGs; in particular, whether the carport will have an adverse impact on the amenity of the adjoining property and the streetscape.
Whether the proposed carport will have an adverse impact on the amenity of the adjoining property
24 The respondent's reason for refusal of the proposal was that it did not comply with cl 2.2 of the RDGs.
25 The acceptable development requirements of this clause refer to buildings on the boundary which are located behind the front setback line. The proposed carport is within the front setback area and therefore needs to be considered against the performance criteria below:
Buildings and other structures built up to boundaries other than the street boundary where it is desirable to do so in order to:
• make effective use of space; or
• enhance privacy; or
• otherwise enhance the amenity of the development; and
• not have any significant adverse effect on the amenity of the adjoining property; and
• ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
26 In this case, there is no restriction of direct sun to major openings of habitable rooms or outdoor living areas of the adjoining property. The critical criteria is that referring to the amenity of the adjoining property.
27 The respondent received objections to the proposal from the adjoining property owner, Mr Michael Rammelt, which included the proximity of the carport to his bedrooms; the materials of construction; and the visual impact of the structure. Mr Rammelt prepared a witness statement and gave evidence at the Tribunal hearing about his concerns.
(Page 7)
28 Mr John Meggitt, a planner and the respondent's representative, contended that the proposed carport would have an adverse effect on the amenity of the adjoining property in that:
(a) building up to the boundary wall will result in the loss of existing landscaping;
(b) it will not assist in ameliorating the impact of building bulk;
(c) the over height structure on the boundary within the front setback area will [have an] adverse affect on the privacy of the adjoining property;
(d) it will not provide for the provision of visual relief from built form within the streetscape.
29 The applicant rejected Mr Meggitt's contentions for the following reasons:
(a) There will be no loss of existing landscaping by building up to the boundary with the adjoining property. A small hole will need to be dug to sink each of the 6 posts (measure 10cm by 10cm each). The impact of these holes is negligible on existing landscaping. Any disrupted landscaping (grass) will be replanted on completion.
(b) The impact of the proposed carport on the southern adjoining neighbour in terms of building bulk will not be significant, due to the presence of the boundary wall which blocks out much of the carport from view. The proposed carport is a single carport with open sides, presenting minimal building bulk.
(c) The council planning officer dealing with this case (Daniel Visser) said there was no height restriction for single carports, and he was not aware of any issue with height with this proposal. The proposed carport is of similar or lesser height than most carports in the area. The proposed carport does not impact on the privacy of the adjoining property in any way.
(d) The proposal is for a single carport, which is a contemporary and unimposing structure with open sides. Given the number of substantial, double carports in the area the proposed carport will not significantly add to any impression of built form within the streetscape.
30 The Tribunal was provided with photographs of the subject site showing the three carport posts in position on the boundary. They are a light cream/white colour, very similar to the white brick wall built on the adjoining property's boundary. The post closest to the street is slightly higher than the wall, the second post is almost the same height and
(Page 8)
- the third post is lower than the wall (the wall steps up in height).
31 The Tribunal is of the view that locating the carport posts on the boundary will make effective use of the space and enhance the amenity of the development by enabling the applicant to use the existing crossover, driveway and timber gates. It will also maintain the existing street parking in front of the subject site.
32 The Tribunal is also of the view that this location will not adversely impact the adjoining property as the structure is the same height at the boundary as the existing wall and rises to an apex of 3.1 metres, some 2 metres from the boundary. The roof sheeting has a setback of 1 metre from the boundary, which means that only three sections of steel (forming part of the roof structure) will be visible in the 1 metre setback area.
33 The Council officer report comments that:
The impact of the proposed carport on the southern adjoining neighbour in terms of building bulk will not be significant, again due to the presence of the boundary wall which blocks out much of the carport from view. While the carport will be slightly visible above the wall as viewed from the south, the apex of the roof is only 3.1 metres in height and presents a less dominating structure than if it was a solid wall. It is therefore not considered that the proposal will have any significant impact on the amenity of the adjoining neighbour.
34 The Tribunal agrees with this and the Council officer's opinion that '[s]etting the carport posts back 1.0 metre from the southern boundary … would not serve any greater purpose in enhancing the amenity of the southern adjoining property'.
35 The Tribunal finds that the proposed carport will have no significant adverse impact on the amenity of the adjoining property and for this reason and those discussed above, the Tribunal finds that the proposal satisfies the performance criteria of cl 2.2 of the RDGs.
Whether the proposed carport will have an adverse impact on the streetscape
36 The issue of streetscape was raised by Mr Meggitt in his witness statement. It was his evidence that the proposed carport did not satisfy the requirements of cl 2.1.1 of the RDGs.
37 The acceptable development standards of cl 2.1.1 for Wembley are as follows:
(Page 9)
- The minimum setback from a primary street boundary to a carport is:
(a) 0.3 metres if the carport is 6.5 metres in width or less facing the street, and is separated from the dwelling by a distance of 1.5 metres or more; or
(b) 2.0 metres if the carport is greater than 6.5 metres in width facing the street, or is attached to or is less than 1.5 metres from the dwelling.
38 In this case, as the proposed carport is 4 metres in width facing the street and is separated from the dwelling by 0.6 metres (that is, less than 1.5 metres), a 2 metre street setback would be required in order to satisfy the acceptable development standards. As a street setback of 0.3 metres is proposed, the carport needs to be assessed against the performance criteria of cl 2.1.1.
39 The performance criteria of cl 2.1.1 are as follows:
• The setback is compatible with the established line and pattern of setbacks in the street;
• A reduction in the setback would not adversely impact on the pattern of development in the street because of the position, shape or topography of the lot; and
• Visual separation is maintained between buildings and adjoining properties.
40 Mr Meggitt was of the opinion that the proposal did not satisfy these performance criteria 'as it is not consistent with the established line and pattern of buildings in Holland Street, which are set well back from the street'. He was also of the view that by positioning the carport on the side boundary, a visual separation was not achieved.
41 An aerial photograph provided to the Tribunal by Mr Meggitt shows, in this section of Holland Street, south of Grantham Street, which contains 26 houses, that there are five carports located in the front setback area. One of these has a sheet metal roof while the other four appear to be constructed with tiled roofs.
42 The applicant also provided the Tribunal with photographs. These were of a selection of carports in Holland Street. The photographs showed a variety of single and double carports with varying side and front setbacks and were constructed in a variety of materials.
(Page 10)
43 The Tribunal is of the view that the proposed carport setback is compatible with the established line and pattern of setbacks in the street. Approximately 20% of the 26 properties in this section of the street have carports located in the front setback area and some of those are double carports. Constructing the roof sheeting with a 1 metre setback from the side boundary maintains a visual separation between the subject site and the adjoining property.
44 The Tribunal finds that the proposed carport satisfies the performance criteria of cl 2.1.1 of the RDGs.
45 Mr Meggitt argued that although the respondent accepts that carports can be built in front setback areas, it is important for there to be a separation between the house and the carport, and that the design should be compatible with the existing house. It was his view that the proposed carport had little architectural merit and did not relate to the existing house on the subject site.
46 The Tribunal is of the view that with a separation of 0.6 metres and the fact that it is a single carport with an apex height of 3.1 metres, the proposal satisfies the stated streetscape aims in cl 2.1 of the RDGs. The Tribunal finds that the proposed carport will 'not detract from the dominant elements of houses and landscape within the streetscape'.
47 With regard to material and architectural merit, the explanatory notes of cl 2.1.5 of the RDGs state the following:
Design should have respect for existing character, which can be expressed in either of two ways:
(a) by a genuine application of or reference to the established style, and its common elements; or
(b) by adopting a contemporary style which is still respectful of the established character.
48 Ms West gave evidence that the issue of material and design had not been raised previously, but notwithstanding this, she was of the opinion that the proposed carport was in a contemporary style and was appropriate as there were others of similar materials in the vicinity, including the adjoining property, and was in a contemporary style.
49 The Tribunal can find no justification to refuse the application on the basis of architectural character.
(Page 11)
Conclusion
50 The Tribunal has determined that the construction of the proposed carport will not have an adverse impact on the amenity of the adjoining property, nor will it have an adverse impact on the streetscape character of the area. It follows that the application for review should be allowed and the decision of the respondent to refuse planning approval should be substituted for a decision granting development approval for the proposed carport.
Orders
51 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent, made on 22 July 2008, to refuse development approval for the construction of a carport at No 80 (Lot 667) Holland Street, Wembley is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(i) The development must be carried out in accordance with the amended plans drawn by Thorn Roofing Contractors date stamped received by the Town of Cambridge 21 May 2008.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER
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