Willicombe and City Of Gosnells
[2006] WASAT 13
•16 JANUARY 2006
WILLICOMBE and CITY OF GOSNELLS [2006] WASAT 13
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 13 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:465/2005 | 8 AUGUST 2005 | |
| Coram: | MR P McNAB (MEMBER) | 16/01/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | 1.The application for review is dismissed 2.The decision under review is affirmed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL WILLICOMBE CITY OF GOSNELLS |
Catchwords: | Town planning Grouped dwellings on small lot Medium density housing indicated Substantial number of variations to Residential Design Codes sought by developer Demonstrated by reference to performance criteria Local government concerned about overdevelopment of site Variations or reductions in setbacks, carports and open space ratio Cumulative effect of variations Local government agreeing to some variations individually Tribunal satisfied overdevelopment indicated Ascertainment of "suburban character" of precinct "Green Title" (Freehold Title) subdivision pending Interrelationship with development application Application dismissed |
Legislation: | Residential Design Codes of Western Australia 2002 cl 3.3.1.P1, cl 3.5.3, cl 3.10.3 City of Gosnells Town Planning Scheme No 6 |
Case References: | Gianna Developments PL v Kingston CC [2001] VCAT 1889 Green v Brisbane City Council & Anor [2002] QPELR 324 Plan Printing & Drafting v Glen Eira CC [1999] VCAT 1614 Propertylink Finance Pty Ltd acting as trustee for Duke Investment Trust v Leichhardt Municipal Council [1999] NSWLEC 266 Nil |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : WILLICOMBE and CITY OF GOSNELLS [2006] WASAT 13 MEMBER : MR P McNAB (MEMBER) HEARD : 8 AUGUST 2005 DELIVERED : 16 JANUARY 2006 FILE NO/S : DR 465 of 2005 BETWEEN : MICHAEL WILLICOMBE
- Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning Grouped dwellings on small lot Medium density housing indicated Substantial number of variations to Residential Design Codes sought by developer Demonstrated by reference to performance criteria Local government concerned about overdevelopment of site Variations or reductions in setbacks, carports and open space ratio Cumulative effect of variations Local government agreeing to some variations individually Tribunal satisfied overdevelopment indicated Ascertainment of "suburban character" of precinct "Green Title" (Freehold Title) subdivision pending Interrelationship with development application Application dismissed
(Page 2)
Legislation:
Residential Design Codes of Western Australia 2002 cl 3.3.1.P1, cl 3.5.3, cl 3.10.3
City of Gosnells Town Planning Scheme No 6
Result:
1.The application for review is dismissed
2.The decision under review is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ms MA Hegarty
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Gianna Developments PL v Kingston CC [2001] VCAT 1889
Green v Brisbane City Council & Anor [2002] QPELR 324
Plan Printing & Drafting v Glen Eira CC [1999] VCAT 1614
Propertylink Finance Pty Ltd acting as trustee for Duke Investment Trust v Leichhardt Municipal Council [1999] NSWLEC 266
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 This review concerned a proposal for a grouped dwelling comprising two single storey units on a small block of land in a developing area of Canning Vale. The land was effectively zoned for medium density housing. The City of Gosnells (the City) rejected the proposal saying that although the designs were satisfactory, in effect the site would be too overdeveloped.
2 In short, they argued that too much development was being squeezed onto this small block of land.
3 The City argued that the principal evidence for this was in the number of variations or compromises that were requested by the developer (Mr Willicombe) from the residential design standards. The City said that although some of these variations or compromises could be justified standing alone, taken together they strongly suggested overdevelopment.
4 The Tribunal agreed and refused to set aside the City's rejection of the proposal. The Tribunal found that there were well-established precedents suggesting that the cumulative effect of variations and compromises could indicate potential overdevelopment. Here, there were material issues to do with storage areas, open space, carports and setbacks which collectively went to demonstrating overdevelopment.
5 Consequentially, Mr Willicombe's application was dismissed.
Introduction: subject land and the development application
6 This review concerns the rejection by the respondent of an application for development approval in relation to the creation of two grouped dwellings at No 102 (lot 713) Amherst Road, Canning Vale. The subject land is located on the corner of Tarn Drive and Amherst Road. The land comprises some 462 square metres. It is located in an area with quite a number of vacant lots.
7 As the applicant himself notes, the proposal relates to "small blocks" and is "modest in scale". The proposed dwellings are, he says, "small on a small lot". However, the proposal relates to single storey dwellings each comprising three bedrooms, two living areas and double carports. The respondent has no concerns about Mr Willicombe's designs, only their suitability for the subject land.
(Page 4)
8 The applicant is an experienced architect and designer and has from time to time appeared in the Tribunal as either advocate or witness.
9 He appears here in his own right as owner and developer.
Rejection by the respondent
10 In May 2005, the respondent, the City of Gosnells (the City), rejected the proposed development on the basis that:
(1) as grouped dwellings, storerooms were missing from the plans;
(2) the performance criteria under the Residential Design Codes of Western Australia 2000 was not adequately addressed; and
(3) the application was contrary to the orderly and proper planning of the locality.
11 From this decision the applicant sought a review in this Tribunal.
Planning framework
12 In this review the Tribunal has had regard to the following major planning instruments:
(1) the respondent's Town Planning Scheme No 6 (TPS 6); and
(2) the Residential Design Codes of Western Australia 2002 (Codes).
13 It is unnecessary to set out extracts of these instruments in these reasons; they are common ground between the parties and relevant clauses are referred to below.
14 However, one preliminary issue does arise and that concerns the interrelationship of the development application with a proposed subdivision of the land.
Green title subdivision: grouped dwellings?
15 The applicant appears to have initially proceeded upon the basis that the Western Australian Planning Commission might approve a green title (freehold title) subdivision of the subject land (see in particular the City's letter to the Tribunal, copied to the applicant, received 4 October 2005 in response to the applicant's fax to the Tribunal, lodged - without leave - after the hearing, and dated 8 August 2005).
(Page 5)
16 It should be noted that the City has now supported the proposed subdivision, according to that letter. At the time of the hearing the application had apparently not yet been lodged.
17 The applicant has not made it particularly clear to the Tribunal what the effect of his pending application for subdivision is on his review. It may be inferred initially that he considered that the application would be granted more or less as a matter of course (perhaps after planning approval was granted - this is not clear) and that the development standards applicable to grouped dwellings were therefore irrelevant.
18 Practically, the Tribunal must proceed, as the respondent in effect submits in the October update letter just referred to, as a review of a decision in relation to the relevant criteria prescribed for grouped dwellings and not to two (hypothetical) single dwellings. This issue, however, only appears to affect the question of whether storage facilities must be allowed for by the applicant: see further below, where the applicant's suggested solution to this issue is proffered.
Housing density
19 Both parties are in agreement that, by reference to the Canning Vale Outline Development Plan and the zoning of the subject land as "residential development" (that is, mixed densities) under the respondent's TPS 6, the subject land should be considered for present purposes as permitting proposed residential development with reference to medium density standards, say generally equivalent to R40, in the Codes.
Performance criteria
20 It is common ground that the proposed development requires the consent of the respondent and that the proposal in a number of areas fails to meet the acceptable development (that is, the deemed to comply) provisions of the Codes (which, as indicated above, are applicable).
21 Instead, as the Codes permit, such standards may, in the alternative, be met by being "demonstrated" under the performance criteria. Here, the respondent has expressly said that such an approach is not unusual in the municipality, and it has emphasised its flexible approach. It cites its approach to lot 394 Waterperry Drive as evidence of this flexibility, but to the extent that the applicant relies upon that case, the respondent points out the development there was on 624 square metres, and not 462 square metres as here. Thus, that development has limited, if any, comparative utility here.
(Page 6)
22 It is also common ground that satisfaction of the performance criteria is necessary in relation to open space; carport length; and front and rear boundary setbacks.
23 The practical burden is upon the applicant to persuade the decision-maker (including this Tribunal) by:
(1) the production of adequate and suitable evidence establishing satisfaction of the prescribed performance criteria; and
(2) satisfactorily dealing with the consequential or related issue of alleged overdevelopment. Apart from rebutting that material and in effect defending its earlier decision, the respondent is to assist the Tribunal in its dealings with each of these issues to reach the correct and preferable decision.
24 By reason of the treatment by the Tribunal of the proposal as a grouped dwelling development (see above), the issue of necessary outdoor storeroom facilities also arises (see below).
25 The respondent says that the following overarching considerations should apply:
"It is incumbent upon [the respondent] when exercising discretion and considering performance based assessment criteria that the functionality and liveability of proposed residential development for future residents of the site and the immediate area is not compromised. It is therefore important to ensure that there is adequate provision for parking, outdoor storage facilities, solar access and open space, and that the impact of the proposed development in terms of building bulk and streetscape is in keeping with the locality."
26 The Tribunal agrees with the substance of those views. It is convenient at this point to draw attention to the consequential primary argument of the respondent by reference to well-established planning principles.
Relevant principles on the "cumulative effect" argument
27 Central to the respondent's case is that the cumulative departures from the Codes, and the associated performance criteria "compromises", even if permissible if each were taken alone, indicates in effect
(Page 7)
- overdevelopment of the site when adjudged by proper standards for the potential development of the land and its precinct.
28 There can be no real doubt that the "cumulative effect" argument is commonly cited to or used by parties in this Tribunal in this context, and the highest authorities have accepted it. See, for example, Propertylink Finance Pty Ltd acting as trustee for Duke Investment Trust v Leichhardt Municipal Council [1999] NSWLEC 266 where Talbot J said at [43]:
"The proposal [has in effect three objections] in respect of significant non-compliance with development standards critical to the control of bulk and scale and compatibility with other development in the locality. The overall cumulative effect leads the Court to the view that the proposal is an overdevelopment of the site."
29 See also Plan Printing & Drafting v Glen Eira CC [1999] VCAT 1614 at page 6 and Green v Brisbane City Council & Anor [2002] QPELR 324 at [20] (per Judge Robin AC):
"I agree with Mr Haydon [of counsel]'s point that, even if, analysed individually, various elements of the development may appear acceptable, it is the combined effect and cumulative impacts that the Court must assess and have regard to."
30 Such cumulative effect might, as indicated, lead to a finding of overdevelopment or related inappropriate development. In the Tribunal's view this issue of the cumulative effect is an important, and as will emerge, the central issue in this case. As the Victorian Civil and Administrative Tribunal neatly put it in Gianna Developments PL v Kingston CC [2001] VCAT 1889 at [28]:
"To conclude that an application [sic] had overdeveloped a site, there usually needs to be evidence of sacrifices in any or all of the following touchstones; density, site coverage, setbacks, open space, car parking, vehicular access, sunlight, or privacy. If there are casualties with some or all of these, a conclusion can be reached that the developer has 'squeezed' the site too much." [original emphasis]
31 The Tribunal turns to consider individually each of the issues set out above which then brings into play the question of the cumulative effect of
(Page 8)
- such matters and the consequential or related argument concerning alleged overdevelopment.
32 The Tribunal commences by looking at the open space requirements for the development.
Minimum open space
33 It is common ground that the outdoor living area provided for both dwellings exceeds the 24 square metres minimum under the Codes (34 square metres and 37.05 square metres respectively). However, the applicant contends for a reduction to a 39% open space site ratio (cf 45% as deemed to comply under the Codes).
34 It is unnecessary to set out the applicant's arguments on this point (which largely have to do with exceeding the minimum living area, and a compensatory re-configuration combined with what is said to be a "high living standard of the dwellings"), because the respondent appears to concede these matters while putting aside the issue of whether the applicant is successful as regards the other matters in contention (such as, for example, there being found no obligation to provide storage areas which would impact upon open space).
35 In short, a proposal which exceeds the 24 square metres total outdoor living area requirement, and which has a 39% across the site ratio for open space, would be sufficient - considered in isolation - to meet the Codes.
36 The respondent says, however, that in any event such a position is reached by doubtful compromises in other areas (such as reduced setbacks). If the applicant is, contrary to his expectation, required to provide for storage areas and fails in his other contentions, the question already foreshadowed will arise: does the reduction of open space, albeit justified standing alone, nevertheless indicate in conjunction with other matters that the land is being overdeveloped?
Front setback and averaging
37 The respondent concedes that the minium front setback in the Codes (2 metres) is met here, but not the prescribed average (which is 4 metres). These figures were agreed as between the parties.
38 The respondent bases its objections to the applicant meeting the performance-based criteria in lieu of the average figure said to be applicable on its view of overall community expectations and the
(Page 9)
- suburban nature of Canning Vale. It points to nearby properties (712 and 710 Amherst Rd), which when built will meet the 4 metre average (as appears from their building licences). The respondent's expert evidence is that a reduction of the 4 metre average would be "out of keeping with existing and approved front setbacks in the near vicinity particularly as the building façade along the Tarn Drive frontage is continuous for the entire length of that frontage and will impose on, rather than enhance the streetscape".
39 See also the evidence of Mr Grace. The respondent expresses concern that an undesirable precedent might be created as "the applicant has stated … that further, similar relaxations will be sought in respect of other underdeveloped lots on Tarn Drive".
40 In reply, the applicant says that his "design solutions here are as close as you can get to reflecting the predominantly single storey [relevant] suburban character" of the area. Those design solutions, he says, meet the matters of complementarity, attractiveness and future needs set out in the Codes' section on performance criteria.
41 Otherwise, he appears to say that it is difficult to predict what the future character of the area will be. His expert witness, Mr Minett, rejects the respondent's arguments as referring to a "desired streetscape [which is] hypothetical". Mr Willicombe also at one point indicated that he thought that one of the generous setbacks given as an example was itself either abnormal or in any event demonstrated wide variations in setback.
42 The Tribunal finds for the respondent on this point.
43 The applicant has not produced any substantial or for that matter relevant material contradicting the respondent's assertion that the desired streetscape aim, already put into place elsewhere besides the decision rejecting this application, is directed to maximising setbacks to somewhere around 4 metres, that is, more rather than less (and more than what the applicant is offering here). Further, in the Tribunal's view a decision-maker including this Tribunal is entitled to adopt the view that a standard should be set now that in practice maximises that goal. That is, after all, what proper planning is about.
44 That goal is achieved by requiring a strong, well-documented case for departure from both the prescribed average and the aspirations behind enforcing that standard; that has not been the case here. As to the question of "community expectations", if the question be relevant, the Tribunal will in most cases as a practical measure look to see how these
(Page 10)
- expectations are reflected in the evidence and often a key expression of opinion will be that of the local representatives, if they are properly directed to the real questions in issue. Here, the only cogent or relevant evidence of such expectations comes from the collective opinion of the elected local Council supported by its officers. That opinion is adverse to the applicant's position.
45 In any event, even if the applicant had adequately demonstrated compliance with the Codes on this point all that merely does is raise, again, the wider question of what matters were affected by or caused the need for the reduced setback, indicating possible overdevelopment, especially if as indicated a number of other variations are sought. This will be considered further below.
Storage areas
46 As discussed above, the applicant's case appears to be that because he has a green title subdivision pending, the Codes requirement (cl 3.10.3) for external storerooms for grouped dwellings can be largely ignored. He did say during the hearing, however, that if no green title was forthcoming and that he received strata titles then he would agree to a condition that the storage areas be included.
47 The applicant says, relatedly, that owners can erect suitable structures in the generous outdoor living areas and can thus accommodate external storage. But, as the respondent points out, that eats further into the outdoor living area and indicates, once again, possible overdevelopment for grouped dwellings.
48 The Tribunal is not satisfied that the applicant has produced any compelling case for departure from the obligation to provide such structures. If he has to provide such structures then, on the application as it stands, they impact upon other matters discussed in these reasons, and again this points to possible overdevelopment of the site.
Carports
49 The applicant again seeks a reduction, this time in relation to the minimum internal length (from 5.5 metres under the respondent's policy 6.2.19, taking into account such matters as roller doors, or 5.4 metres under the Codes cl 3.5.3 based on an Australian standard: AS2890.1) to 5 metres, claiming in effect that most domestic vehicles were slightly less than that length. His written response to the respondent when it produced, amongst other things, an Australian Holden vehicle statistic of a length of
(Page 11)
- 5.03 metres was, to say the least, unhelpful (" … and congratulations to Gosnells for finding one!").
50 Notably, he did not otherwise contest the figures provided but sought to draw comfort from another development of his that was approved (Waterperry Drive); the European trend for smaller vehicles; and that this was a proposal dealing with "modest houses". He proposed a condition that the "minimum covered length" be 5.4 metres.
51 In response, the respondent's Ms Hegarty said, in the hearing, that in principle the respondent could live with such a condition, subject to an argument about overdevelopment. As to the Waterperry Drive approval, Ms Hegarty frankly conceded that a mistake had been made, and that the respondent's policy ought to have been applied in that instance. It therefore did not indicate any precedent or change in policy.
52 Again, the applicant has not produced any evidence of substance to show why any relaxation of these standards is warranted. His factual basis for his assertions as to car length was in any event flawed, and the European comparison is of no help given the existence of a current Australian standard. Nevertheless, as the respondent has agreed to the suggested compromise the issue is, once again, whether the pressure to relax the standard, in the light of what has already been cumulatively discussed, suggests overdevelopment.
Rear setback
53 Under the Codes, a 1.5 metre setback for rear walls is required, or alternatively a proposal may meet the performance criteria and be considered as adequate if respect for factors such as solar access, ventilation, bulk and privacy are adequately demonstrated (see cl 3.3.1.P1).
54 The applicant originally sought a reduced setback of 1 metre, demonstrating compliance by his designs. Alternatively, he offered changes to rear wall heights and a requirement to have windows to the bedrooms above 1.6 metres, which he said met "the acceptable development criteria for a wall with minor openings". The respondent has rejected both suggestions proffered by the applicant.
55 In the Tribunal's view because of the conclusion reached by the Tribunal on the principal issue it is unnecessary to resolve this matter in these proceedings. Likewise, during the hearing similar issues emerged in relation to side setbacks and fences (in respect of which there were major
(Page 12)
- differences of understanding and opinion between the parties) and the same position applies: it is unnecessary to resolve them in these proceedings by reason of the conclusion that the Tribunal has reached on the issue of overdevelopment.
Conclusions
56 The applicant's point seems to focus on the modest nature of his proposed dwellings and his conscientious designs in relation thereto which he says in effect take into account the respondent's concerns and the relevant elements of the Codes.
57 Possibly, to some degree this matter echoes, in part, the conclusion of the Court in Green v Brisbane City Council& Anor at [28] (per Judge Robin QC):
"I agree with Mr Robbins [an architect and town planner, who gave expert evidence for the third party appellant] that the overall effect on the residents will be the provision of 'constrained and pokey outdoor spaces', but not that residents would necessarily see this as 'a low standard of residential amenity' or have 'a clear perception that too much has been squeezed on to the land'. This seems to me a matter for individual judgment [of the prospective owners]."
58 The court in that case refused to interfere with a proposal to develop eight terrace houses, as part of the redevelopment of Kangaroo Point in Brisbane, on "a shallow parcel comprising only 943 square metres". Similar concerns arose there as to the issues in this case. However, the rather upmarket tone of this development, taken overall, and its proximity to both the river and the associated views, and to parks rather distinguishes that proposal from what is contemplated here.
59 Here, putting aside the failure of the applicant to persuade the Tribunal in relation to demonstrated performance criteria in relation to front setbacks (grounds alone, perhaps, for dismissing the application - cf T:20 where the applicant's comment that "the whole issue hinges on streetscape and front setback" points to how crucial this issue is), the Tribunal is satisfied that the need to depart from the Codes by reference to the performance criteria in connection with other compromises in so many areas, leads to the conclusion that this application, if it were to be approved, in its cumulative effect would lead to overdevelopment of the site.
(Page 13)
60 To paraphrase Gianna Developments PL v Kingston at [28], there is here "evidence of sacrifices" in the following "touchstones" namely "setbacks, open space, car parking". There are "casualties with some or all of these [and] a conclusion can be reached that the developer has 'squeezed' the site too much."
61 Being modest dwellings on small blocks should not mean that reasonable standards of amenity are compromised. The respondent is, as is the Tribunal standing in its shoes, entitled to prevent a raft of compromises that collectively undermine the intent of the Codes. Mr Grace (an expert witness for the respondent)'s point that single storey dwellings comprising three bedrooms, two living areas and double carports are difficult to achieve on lots of this size is thus made out, and it would be a strange construction of the Codes if this was thought permissible under them in these particular circumstances.
62 It is true that during the hearing (and it appears even before then) Mr Willicombe offered various compromises and counter-suggestions at diverse points, but as was noted by the Tribunal (T:32) amending plans through a type of "on the run" negotiation process seemed an unsatisfactory way to deal with the issues then before the Tribunal. The Tribunal remains of that opinion, especially since the applicant had earlier rejected mediation offered by the Tribunal on at least two occasions.
63 Finally, mention should be made of the suggestion from the respondent that two storey development might be more appropriate (or, alternatively, smaller homes could be built to diversify the housing market). In the hearing the arguments about two storey proposals were briefly canvassed. Again, however, in the context of this review it is unnecessary and impractical, if not impossible, to deal with these issues on the material presently before the Tribunal.
64 The respondent has made out its case and the application should therefore be dismissed.
Orders
1. The application for review is dismissed.
2. The decision under review is affirmed.
(Page 14)
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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