WICKENS and CITY OF SUBIACO - [2010] WASAT 156

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WICKENS and CITY OF SUBIACO [2010] WASAT 156

MEMBER: MS M CONNOR (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 22 OCTOBER 2010

FILE NO/S: DR 95 of 2010

BETWEEN: JEREMY WICKENS
Applicant
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning - Development application - Carport in front setback area - Location and vehicular access - Right of way at rear - Surrounding development - Existing pattern of development - Streetscape - Sustainability - Orderly and proper planning - Solid front fence - Whether the proposed front fence promotes surveillance and enhances streetscape - District distributor - Excessive noise - Privacy of outdoor living area - Existing pattern of development

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 22, cl 23, cl 23(i), cl 27(3), cl 27(4), cl 27(4)(b), cl 28, cl 37, cl 39(3), cl 41.2(f), cl 41.2(i), cl 41(2), cl 70(1)(a), cl 78, cl 78(8)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2.3, cl 6.2.5, cl 6.2.5 P5, cl 6.5.4

Result:

The application for review is allowed in part
The decision of the respondent is affirmed but varied to allow a single car parking bay hardstand

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Ms A Templeton (Representative)

Solicitors:

Applicant: Self-represented
Respondent: City of Subiaco

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

APP Corporation Pty Ltd and City of Perth [2008] WASAT 291
Choong and City of Subiaco [2010] WASAT 86
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Wickens applied to the State Administrative Tribunal for review of the City of Subiaco's decision to refuse planning consent for the demolition of the existing dwelling and the construction of a single storey dwelling on No 284 Nicholson Road, Subiaco.
The development application encompassed the overall development of the subject land, and included a number of elements that did not require planning approval. It was agreed by the parties that the only elements of the application that required planning approval were the construction of the single carport and associated hardstand area and the solid front fence.
In considering the substantive merits of this particular case in light of established planning framework and in the context of the surrounding development, the Tribunal found that the proposal did not warrant approval. However, the Tribunal did support the construction of a single car parking bay hardstand in the same location as the proposed carport.

Introduction

Mr Jeremy Wickens (applicant) made application to the City of Subiaco (respondent or Council) for approval for additions and alterations to the existing dwelling, at No 284 (Lot 48) Nicholson Road, Subiaco (subject land or property). The application was refused by the Development and Community Services Committee of the respondent at its meeting of 9 March 2010, stating the following reasons for refusal:
a)The proposal does not meet the requirement of Clause 27(4) (b), (e), (f), (g) and (h) of the City's Town Planning Scheme as it is inconsistent with the relevant planning policies, a submission relating to the application, the orderly and proper planning of the locality, the conservation of the amenity of the locality and the scale of the existing buildings in the surrounding area.
b)The proposal does not meet the requirements of Clause 28(3) (a) & (b) of the City's Town Planning Scheme as the proposed development is not consistent with the orderly and proper planning of the locality, [the] preservation of the amenity of the locality, planning objectives of the zone and would have an adverse impact on the adjoining property and likely future development in the locality.
c)The proposal does not meet the requirements of Clause 41(2) (f), (g) and (j) of the City of Subiaco Town Planning Scheme No. 4 as the proposal is considered to have a detrimental effect on the character of the area, be excessive in regards to the surrounding development and does not incorporate crime prevention principles.
d)The proposed location of a car parking bay within the primary street setback is contrary to the City's Residential Car Parking policy where access is available from the right of way.
e)The proposed front fence is contrary to the City's Perimeter Fencing and Designing Out Crime policies as it will not allow passive surveillance of the street and will have an adverse impact upon the streetscape and amenity of the area.
f)The proposed carport is contrary to the City's Streetscape policy with regards to setback requirements.
Mr Wickens, on 6 April 2010, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

Proposal

The applicant submitted a development application that encompassed the overall development of the subject land, with intention of transforming the existing 1950s dwelling into an example of best practice sustainable development. A number of elements included in the proposal do not require planning approval; however, in order to understand the principles to be applied, it is considered necessary to outline all aspects of the proposal. The following key principles of sustainability are incorporated into the proposal:
•low maintenance, long-lasting construction;
•low mains water consumption;
•local food production;
•passive cooling and heating; and
•accessible design.
The proposal is comprised of the following elements:
1)Rainwater tanks - installation of an underground 25,000 litre rainwater tank and an aboveground 500 litre rainwater tank. The large tank will collect water from the dwelling and is to be plumbed into the house. It is anticipated that mains water consumption will be reduce to nil or close thereto. The smaller rainwater tank will collect water from a proposed garden shed and will be used for irrigation of the proposed food production areas.
2)Food productions areas - a large area at the rear has been designated for food production. It is proposed that this area will incorporate 27 fruit trees, underplanted with herbs and 60 square metres devoted to vegetable production, which is expected to be sufficient to provide for the family's vegetable requirements. The area identified for food production is considered to be ideal as it is well drained, with optimal hours and intensity of sunlight in winter and shade from the west in summer.
3)'Dryzone' beds of native plants - a sustainable ecosystem is being created, through the planting of native flowering shrubs in borders around the food production areas.
4)Single carport and crossover - the carport is proposed to be located in the south-western corner of the subject land accessed via a new crossover onto Nicholson Road. It is intended that the large underground rainwater tank will be located under the proposed carport. According to the applicant, locating the carport in front of the dwelling is fundamental to the sustainable living strategy as it allows for the rear of the property to be used for food production. The front of the property is considered less suitable for vegetable growing, because there is a large mallee-grown eucalypt in close proximity in the neighbours property, which competes for water and nutrients and there are insufficient hours of sun in winter and too many from the northwest in summer.
5)Deck with water feature and pergola - proposed to be constructed to the south of the dwelling. This area is intended to provide a cool outdoor living area in heat of the summer, with evaporation from the water feature creating microclimate cooling. The pergola features adjustable shading to control the dwelling's heat gain from the sun in summer and winter. The south facing window of the main bedroom is to be replaced with large doors that can be opened to the prevailing south-westerly breeze in summer, allowing greatly increased cross ventilation for passive cooling.
6)Solid front fence - the wall is to be constructed in rendered brick and painted in a light cream colour. The purpose of the solid wall is to provide privacy for the proposed southern outdoor living space and the proposed doors on the south facing wall of the main bedroom and assist in noise reduction from busy Nicholson Road.
7)Ensuite to main bedroom - the ensuite is proposed to be built up to the western boundary.
8)Demolition of existing asbestos shed and replacement garden shed which is to be located close to the western boundary at the rear of the property to maximise space for food production. The height of the shed is 1.9 metres high.
9)Additional retrofitting for sustainability - this includes three whirlygigs in the dwelling roof; modified vents in the dwelling ceiling; R4.1 ceiling bulk insulation; R2.6 summer silver foil roof insulation; compact and T5 florescent and LED lighting; ceiling fans, shade cloth for east and west facing windows; massive soil improvement; compost bin (5); worm farm and bokashi to recycle all organic waste from the dwelling on site; water permeable hard surfaces to allow drainage into the soil.
10)A single car parking bay hardstand located at the rear of the subject land accessed via the right of way was later incorporated into the design as a result of discussions with the respondent.

Planning framework

The subject land is zoned 'Urban' in the Metropolitan Region Scheme (MRS) and 'Residential' with a density coding of R20 under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme).
Under cl 22 of TPS 4 all development, except as otherwise provided in cl 23 of the Scheme, is required to obtain prior approval of the Council in each case. However, cl 23 specifies exemptions to this requirement and as such, it was agreed that the only aspects of the application that required development approval was the construction of the single carport and the solid front fence.
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 respondent's policy manual. The subject land is located in the West Subiaco Planning Precinct.
Clause 39(3) of TPS 4 provides that '[u]nless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of those Codes'. The proposed development falls within the ambit of the Codes. Further, cl 70(1)(a) of TPS 4 provides that car parking is to be provided in accordance with the Residential Design Codes of Western Australia (2008) (Codes) for residential development.
Sub-clause 27(3) of the Scheme provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, sub-clause 27(4) of the Scheme sets out the matter to which regard is to be given in the determination of an application. The pertinent matters relating to this application area as follows:
•the provisions of the Scheme (subclause (a));
•any relevant planning policies (subclause (b));
•any submission accompanying or relating to the application (subclause (e));
•the orderly and proper planning of the locality (subclause (f));
•the conservation of the amenity of the locality (subclause (g)); and
•the design, scale and relationship to existing buildings and surroundings of any proposed building or structure (subclause (h)).
Clause 28 of the Scheme, which is cited by the respondent as a reason for refusal, is not relevant to this application as the development, the subject of this application, is development in respect of which the Codes apply and therefore, this clause has no application. For this reason, any arguments presented by the respondent's witness utilising cl 28 are irrelevant for the purpose of determining this application.
Clause 41(2) of the Scheme sets out the objectives of the Residential zone and requires that regard be given to those objectives. The respondent contends that the proposal does not meet the following objectives:
(f)to enhance 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)to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping. …
…
(j)to promote and encourage design that incorporates crime prevention through environmental design principles including but not limited to, appropriate fencing, appropriate landscaping, casual surveillance of public open spaces and adequate pedestrian movement sightlines.
Clause 78 of the Scheme 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. Sub-clause 78(8) of the Scheme provides that a planning policy prepared under cl 78 shall be consistent with the Scheme and where any inconsistencies arise, the Scheme prevails. Subclause 27(4)(b) requires consideration of planning policy in the determination of an application. Four policies referred to by the parties were:
•Policy 3.7 - Residential Car Parking (Car Parking Policy);
•Policy 3.1 - Streetscape Policy;
•Policy 3.8 - Perimeter Fencing Policy (Fencing Policy); and
•Policy 6.4 - Designing Out Crime.
According to the respondent, these policies has been formulated and adopted by the Council in accordance with the provisions of cl 78 of the Scheme.

Issue

As stated above, there are two components of this development application that require determination, namely the single carport located on the south-western corner of the subject land accessed via a new crossover onto Nicholson Road and the solid front fence. For convenience sake, each component will be considered separately.

Single carport

Ms Amanda Templeton, Coordinator Statutory Planning at the City of Subiaco, undertook an assessment of the development against the standards and requirements of the Scheme, Codes and relevant planning policies and prepared a table to demonstrate those areas of the application that she considered to be subject to variation or performance based assessment. The portion of the table applicable to the single carport is replicated below.

Relevant TPS 4, R-Codes or policy provision	Required	Proposed
Clause 6.1 of the Residential Carparking policy	Carport located in the most acceptable location - off the ROW	Carport located off Nicholson Road is the least acceptable location
Clause 6.5.4.A4.1 and P4 of the R-Codes	Access to on-site parking to be provided where available, solely from a ROW	Carport to be accessed via Nicholson Road
Clause 5.2 of the Streetscape policy	Carport to be setback the average of adjoining properties - 4m	Carport setback 2.5m from the Nicholson Road boundary

This table usefully identifies the issues raised by the respondent, being conformity with the Codes, consistency with the respondent's policies and in particular the effect of the proposal on the Nicholson Road streetscape.
Clause 39(3) of TPS 4 requires that the residential development conform to the Codes. The Codes have been structured using a performance approach, following a pattern of first establishing an objective, second articulating performance criteria and thirdly, providing under the heading Acceptable Development, examples which effectively are deemed to meet the relevant Performance Criteria.
The objective outlines the desired outcome for a particular design element or special provision. In this case, the respondent has raised an issue with cl 6.5.4 (Vehicular access) of the Codes. The objective of this part of the Codes is '[t]o ensure adequate provision of secure, visually acceptable and accessible onsite parking for residents and visitors'. In order for the objective to be met, the performance criteria must be satisfied.
One way of meeting the associated performance criteria is to satisfy the acceptable development provisions. It was generally accepted by the parties that the proposed development does not meet the acceptable development provisions of cl 6.5.4 of the Codes and therefore the application requires assessment against the corresponding performance criteria.
Clause 6.5.4 of the Codes specifies the performance criteria for vehicular access as follows:
P4Vehicular access provided so as to minimise the number of crossovers, avoid street trees, to be safe in use and not detract from the streetscape.
The respondent contended that two aspects of the performance criteria have not been satisfied, that being 'to minimise the number of crossovers' and 'not detract from the streetscape'. Ms Templeton argued that as there is currently no crossover servicing the subject land, the proposal results in an increase in the number of crossovers along Nicholson Road and would detract from the streetscape, and therefore access should be restricted to the right of way at the rear of the property.
Clearly the Codes contemplate that there is an alternate to the acceptable development provision of access solely from a right of way: Choong and City of Subiaco [2010] WASAT 86 at [28]. As to interpreting the performance criteria and in particular the limbs relating to 'minimising the number of crossovers' and 'not detracting from the streetscape' the Council, and the Tribunal on review, is assisted by the Car Parking Policy and the Streetscape Policy.
The Car Parking Policy takes an a fairly rigid approach to the location and access arrangements for car parking areas and structures where access is available via a right of way, but does provide for a number of exceptions, which are set out in cl 8.0 of the policy. There is no dispute that the subject land has access to the right of way that is located at the rear of the property. In terms of the policy, the most desirable location and access arrangement for the subject land is to locate the carport at the rear of the property accessed via the right of way. The proposed access arrangements and location of the carport fall within the least acceptable option, being 'front of dwelling'. The respondent does not consider any of the exceptions to be applicable in this case, where as the applicant argued that the proposal satisfied two exceptions, being cl 8.2 and cl 8.5 and therefore can be supported. These clauses read as follows:
8.2Where there is, in surrounding development [emphasis added], a suitable existing pattern of parking within the street setback area (nominally greater than 50%). In determining whether the existing pattern of parking in surrounding development is suitable, regard will be given to:
i)Whether surrounding development has the potential to be redeveloped such that car parking can be provided in a more acceptable location as defined by clause 6.0 of this policy;
ii)Whether the existing pattern of parking structures in the street setback area are of high architectural and streetscape quality; and
iii)In cases of uncovered car parking areas, whether the location has the necessary approval to be considered suitable by the City.
8.5Where, in the opinion of the Council, the proposed parking arrangement would enhance the streetscape.

The term 'surrounding development' is defined in cl 2 of the Car Parking Policy as:
[m]eans the five properties on either side of the proposed development on both sides of the street (excluding laneways/rightof-ways) that the dwelling is orientated towards. More significance will be given to surrounding development that is closer to the proposed development, particularly in the case of corner lots.
For the purposes of this review, 'surrounding development' was identified by the parties as Nos 269, 271, 273, 274, 275, 276, 277, 278, 279, 280, 282, 283, 285, 286 and 288 Nicholson Road, although the applicant did reference other nearby properties that lay outside of the 'surrounding development' area.
The applicant contended that 10 of the 15 properties (66%) within the 'surrounding development' have car parking structures or areas located within the front setback area, being Nos 271, 273, 277, 278,279, 280, 283, 285, 286 and 288 Nicholson Road. However, the applicant acknowledged that the hardstand car parking bay within the street setback of No 286 had recently being removed.
The respondent agreed with seven of the ten properties identified by the applicant, only disagreeing with Nos 278, 283 and 286. However, after further assessment of the properties in accordance with subclauses (i), (ii) and (iii) of cl 8.2, the respondent maintained that only three of the 15 properties (20%) within the 'surrounding development', being Nos 273, 279 and 280, exhibited a suitable pattern of car parking within the street setback area. Based on this assessment, the respondent argued that the existing pattern of parking within the 'surrounding development' did not satisfy cl 8.2 of the Car Parking Policy and as such, a variation to the acceptable standards should not be granted for vehicular access from Nicholson Road and the construction of a carport within the front setback area.
The Tribunal agrees with the respondent that No 286 is not a property that can be considered to have car parking structures or areas located within the front setback area as the hardstand car parking bay accessed off Nicholson Road has been removed. In relation to No 278 and No 283, the Tribunal accepts the applicant's argument as access to both these properties is from Nicholson Road and the evidence (photographs) demonstrates, and as observed on the site view, that the front setback areas are used for parking purposes. The Tribunal, therefore, considers that there are nine properties within the 'surrounding development' that have car parking structures or areas located within the front setback area.
As to the analysis of 'a suitable existing pattern of parking', the Tribunal finds that albeit any redevelopment of the sites, seven of the nine properties that have car parking structures or areas located within the front setback area (Nos 280, 278, 271, 273, 277, 279 and 283) will require access to onsite car parking from Nicholson Road as there is no other alternative access arrangements available. Further, it is unlikely that the access arrangement for No 285, which has dual frontage, will alter given that substantial demolition of the dwelling would be required to achieve this outcome. There is also an additional property, No 275A, that does not have any car parking structures or areas located in the front setback area but as there are no other alternative access arrangement available, vehicular access onto Nicholson Road will be in inevitable. This analysis shows that at least 60% of the 'surrounding development' will retain access via Nicholson Road and that 60% of the properties currently have car parking structures or some form of car parking arrangement located within the front setback area (refer para 31).
In considering the potential for redevelopment and the relocation of parking arrangements, the Tribunal concludes that the potential exists for Nos 271, 285 and 288 for car parking to be provided in a more acceptable location in terms of the policy. However, the respondent conceded that the car parking structure for No 288 could be considered to be of architectural merit and thereby satisfying part ii) of cl 8.2. In addition, there are manoeuvring issues relating to accessing the right of way for No 280, which if unresolved could potentially result in car parking being provided in the front setback accessed via an existing crossover onto Nicholson Road. On this assessment, there is the potential for the pattern of car parking within the front setback to reduce to 53%. Whether this is likely is speculative at best as there is no impetus other than additions to the existing dwelling that would trigger a requirement to alter existing car parking arrangements.
What is evident from the analysis of the 'surrounding development' is that there are only two properties that have car parking structures located in front of the existing dwelling. The predominant pattern is for hard stand parking areas in front of the dwelling and for the car parking structure to be located at the side of the dwelling. Such siting is not possible in this instance due to the configuration of the existing dwelling. Parking structures do not present as a dominating feature of the dwellings or the streetscape. The existing streetscape comprises of single storey dwellings with pitched and hip roof forms, with parking structures generally located to the side of the dwelling and/or hard paving areas within the front setback area. Front screen walls are a significant feature in the streetscape and obscure the view of the dwellings from the street to varying degrees. A more specific analysis of the front screen walls will be discussed in further detail below.
The applicant argued that the carport will not significantly obscure the view of the dwelling from the street as the carport is less than 50% of the width of the dwelling's façade, the obscured portion of the dwelling will be partly visible below the line of the carport roof and the roof of the dwelling will be visible through and above the timber battens. In response to the impact of bulk on the streetscape, the applicant argued that the sense of bulk would be minimal as only a small section of the roof would be visible from the street and that architectural features had been incorporated into the design of the carport so as to soften the visually appearance of the structure.
The Tribunal also notes that six submissions were received from surrounding landowners. Of these, five were in support, advocating that the proposal was consistent with the streetscape and would make a positive contribution to the locality, and one objecting, which raised a number of concerns, including impact on streetscape.
The Tribunal does not agree with the applicant's assessment of the impact of the carport on the streetscape. The carport is proposed to be located well forward of the existing dwelling and its roof projects out to the boundary of the property. Clearly, this is not the prevailing pattern and spatial character of the surrounding development. The carport will present as a visually imposing structure that will have a detrimental affect on the rhythm of the streetscape and will have a significant visual impact on the streetscape and adjoining public spaces both in terms of scale and interface.
Although the proposed carport is compliant with the acceptable development provisions as set out in cl 6.2.3 (Setbacks of garages and carports) of the Codes, the design response of the proposed development does not respect the dominant scale and form of the main elements in the streetscape and does not positively contribute to the character of the 'surrounding development'. The Tribunal finds that the carport is not consistent with the characteristics of the 'surrounding development' or the intent of the Council's policies, which seek to minimise the detrimental impact of inappropriately located car parking structures on the surrounding streetscape.
The applicant also raised the issue of sustainability as a reason for support of the application. He argued that his primary reason for seeking a carport in the proposed location is to make effective use of the space and progress a larger plan to use the subject property (refer to paras 6 to 7). He submitted that the Car Parking Policy should be considered against the objective of sustainability as subscribed to in TPS 4 and the respondent's Policy Manual.
Clause 41.2(i) of TPS 4 requires the Council, and the Tribunal on review, in considering an application for development approval in a Residential zone to have regard to a number of objectives, one of which is:
to promote and encourage design that incorporates sustainability principles, including but not limited to solar passive design, energy efficiency, reduction in greenhouse gas emissions, water conservation, waste management and recycling;
Similarly, cl 41.2(f) requires the Council to have regard to solar and environmentally sound design principles in considering development applications.
The Tribunal has previously recognised that sustainability is an important objective of orderly and proper urban and regional planning, and one of the relevant matters for consideration in the exercise of planning discretion as an element of orderly and proper planning: WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 at [37]; APP Corporation Pty Ltd and City of Perth [2008] WASAT 291 at [92] [93]. The Tribunal acknowledges that the applicant's proposal embraces the principles of sustainability by effectively reducing the negative environmental impact of the development through design with sustainable living in mind.
The task of the Tribunal is balancing the objectives of sustainability and enhancement of streetscape. Both are elements of orderly and proper planning. In the circumstances of this case, particularly in light of the terms of the Council's policies, and the likely and future character of the streetscape, on balance, sustainability considerations do not warrant approval of the carport structure. However, both sustainability and enhancement of streetscape objectives would be reasonably achieved by allowing hardstand parking within the front setback area without a carport structure.

Solid front fence

The following assessment against the standards and requirements of the Scheme, Codes and relevant planning policies was made by Ms Templeton in respect to the front screen wall.

Relevant TPS 4, R-Codes or policy provision	Required	Proposed
Clause 5.3 of the Perimeter Fencing policy	Front fence visually permeable above 0.9m for at least 50% of the length of the fence to a height of 1.8m	Fence, sliding gate and entry gate 100% solid in height to 1.8m
Clause 5.4 of the Perimeter Fencing policy	Entrance to the dwelling clearly visible from the street	Solid front fence will obscure views of the entrance area to the dwelling
Clause 3.1 of the Designing Out Crime policy	Footpaths able to be viewed from ground floor windows	Solid front fence will obscure views of the footpath

Clause 23.1(i) of TPS 4 provides exception for planning approval for fences that do not require the exercise of discretion to vary the provisions of the Codes or the Scheme. Ms Templeton's assessment appears to have only addressed the respondent's policy and does not refer to the requirements of the Codes. Apropos to cl 39(3) of TPS 4, development of land for any residential purposes dealt with by the Codes is to conform with the Codes. Street walls and fences are dealt with by the Codes and as such, consideration of such an application must be assessed against the provisions of the Codes. The relevant provisions are found at cl 6.2.5, and are set out below:
The acceptable development provision for street walls and fences is:
A5Front walls and fences within the primary street setback area that are visually permeable 1.2m above natural ground level.
The performance criteria are:
P5Front walls and fences to promote surveillance and enhance streetscape, taking account of:
•the need to provide protection from noise and headlight glare where roads are designated as primary or district distributors or integrator arterials; or
•the need to provide screening to the front setback; or
•the need to provide privacy to north facing outdoor living areas.
The proposed front fence does not meet the acceptable development provision and therefore requires planning approval and assessment against the corresponding performance criteria.
P5 of cl 6.2.5 of the Code requires a finding that the proposed front fence 'promote[s] surveillance and enhances streetscape'. In forming this view it is necessary to taking account of the three bullet points, if applicable. It was common ground that Nicholson Road is a district distributor which carries an average of 8,680 vehicles per weekday. The Tribunal therefore concludes that dot point one is a relevant consideration in determining whether the proposed front fence promotes surveillance and enhances the streetscape. The applicant also argued that there was a need to provide screening to the front setback. The Tribunal does not agree with this point of view for the reasons expressed below.
The respondent has prepared and adopted three policies that provide local context and assist in the application of the performance criteria relevant to this aspect of design, those being the Fencing Policy, Streetscape Policy and the Designing Out Crime Policy. It is the respondent's position that the front fence does not meet the stated objectives of these policies and will have an adverse impact on the streetscape and amenity of the surrounding area.
The Fencing Policy addresses the issue of visual permeability in relation to the amount of traffic using the street adjacent to the front fence and identifies, in cl 5, a lesser standard for Nicholson Road, being, '[f]ront fences … to be visually permeable above 0.9m in height above natural ground level for at least 50% of any fencing forward of the building line, but may be solid below 0.9m in height'.
The applicant submitted that there is justification to warrant variation to the standard as the subject lot is located 99 metres from the traffic lights at the Nicholson Road and Railway Road intersection, and is located in a particularly high noise section of Nicholson Road. He asserted that the vehicle noise experienced at the subject lot was 'excessive' within the meaning of the policy, as Nicholson Road was a major through road connecting a large part of the western suburbs with Perth City and that it was an essential route for, and regularly used by, fire engines, ambulances and policy cars with their sirens on and heavy army vehicles and buses returning to the depot. Other factors influencing the noise levels included proximity to traffic light, traffic noise from Railway Road, reflection of vehicle noise from surrounding solid screen walls and passing trains. He argued that the visual permeability provision of the policy relating to Nicholson Road did not offer an effective means of reducing traffic noise and that the gaps in the fence would significantly reduce the effectiveness of the barrier.
Barker J held in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied. His Honour said that:
… the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to the] particular application.
The Tribunal accepts that this is the relevant starting point. The Fencing Policy relevantly provides for different standards of visual permeability according to the level of traffic and/or location to roundabouts and traffic lights. The respondent also provided evidence to show a relationship between the levels of permeability required with the level of traffic experienced on those roads. The Tribunal is not persuaded by the applicant's argument that variation to the standard as set out in cl 5 should be supported as many of the noise issues raised by the applicant form part of the rationale behind identifying the various criteria. The Tribunal does not consider there to be any unusual circumstances associated with the subject land that would support a departure from the criteria set out in the Fencing Policy.
Privacy was another reason argued by the applicant. He submitted that the outdoor living area at the front of the property and the windows in the south facing walls of the bedroom will be easily visible from the street without a solid wall and that the lack of privacy will reduce the effective use of these spaces. The Tribunal is not persuaded by this argument for a number of reasons. Firstly, the outdoor living area referred to by the applicant is one of a number of areas that can be utilised as an outdoor living area and therefore the need for this area to be protected from overlooking is reduced. Secondly, other methods of screening, such as vegetation, can be used to provide the necessary protection sort by the applicant and thirdly, the deck area and bedroom window are setback from the street and are sufficiently separated so as to diminish the effects of any public interface issues.
The applicant also argued that the impact of the solid front fence on the existing streetscape would be minimal as a relatively homogenous streetscape had emerged in this locality which contained high solid screen walls and that this pattern had emerged for a reason. He accepted that the proposed front fence will obscure view of the entrance of the dwelling from the street, which is contrary to the principle of passive surveillance. However, an alternative crime prevention strategy has been proposed by the applicant, which amongst other things includes a locked pedestrian gate with camera and automatic entry controlled from inside the dwelling. The applicant submitted that this strategy is a more adequate alternative to the measure required by the respondent's policy.
The Tribunal does not agree with the applicant's assessment of streetscape and does not consider this to be a situation where the 'horse has bolted' so that the planning outcomes cannot be obtained. The evidence shows that on the northern side of Nicholson Road within the 'surrounding development' only two of the eight properties have permeable front fences. However, this pattern is not repeated on the southern side, where clearly the dominant pattern is front fences that are visually permeable. At present, views of the existing dwelling are visually unrestricted from the street and there is visual interaction between the dwellings and the street along this side of Nicholson Road. The construction of a solid screen wall that does not provide for any visual interaction between dwelling and the street cannot be said to 'enhance the streetscape' or 'promote passive surveillance'. Although the Tribunal acknowledges that protection from noise is appropriate in this instance, it does not consider that this is a case where the principles of visual permeability and passive surveillance should be completely abandoned and finds the standard proposed by the respondent's policy acceptable in this instance.
The Tribunal finds that the proposed front fence does not satisfy the relevant performance criteria of the Codes and is inconsistent with the respondent's policies and as such warrants refusal in the form proposed.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed in part.
2.The decisions of the respondent to refuse planning approval for additions and alterations to an existing dwelling comprising a carport, deck and front fence at No 284 Nicholson Road, Subiaco is affirmed, but varied in accordance with the following order.
3.Planning approval is granted for a single car parking bay hardstand accessed via Nicholson Road, in the location shown as 'proposed carport' on plans date stamped received by the City of Subiaco on 13 November 2009, at No 284 Nicholson Road, Subiaco (but not for the carport structure shown on the plans).

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER