WIMBRIDGE and TOWN OF CAMBRIDGE
[2020] WASAT 30
•10 MARCH 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WIMBRIDGE and TOWN OF CAMBRIDGE [2020] WASAT 30
MEMBER: MS R MOORE, MEMBER
HEARD: 10 DECEMBER 2019
DELIVERED : 10 MARCH 2020
FILE NO/S: DR 134 of 2019
BETWEEN: GRAHAM WIMBRIDGE
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development application - Retrospective approval of existing garage - Reduced primary street setback - Adverse impact on streetscape character
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 60, cl 61, cl 67
Planning and Development Act 2005 (WA), s 252(1)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 5.2.1
Town of Cambridge Local Planning Scheme No 1, cl 9, cl 16(2)
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | Mr J Algeri (Acting as agent) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Churches and Shire of Collie [2019] WASAT 76
Coenen and City of Nedlands [2006] WASAT 111
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Evans and City of Subiaco [2012] WASAT 172
Kinnersly and Town of Cambridge [2008] WASAT 44
Kogon and City of Vincent [2019] WASAT 75
Nairn v Metro Central Joint Development Assessment Panel [2018] WASCA 18
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Mr Graham Wimbridge (applicant) pursuant to s 252(1) of the Planning and Development Act2005 (WA) (PD Act) for a review of the decision of the Town of Cambridge (respondent or Town) made on 18 June 2019 to refuse development approval for a new two storey dwelling to be constructed at No 27 (Lot 2) Evandale Street, Floreat (site or subject site). The development application included a request to approve retrospectively an existing double garage on the site.
Proposal and background
The applicant proposes to demolish the existing single storey dwelling on the site and construct a new two storey dwelling in its place. The proposal includes the retention of the existing double garage, which is approximately 6.9 metres wide by 6 metres long.
The existing garage has a nil side boundary setback to the property to the west, No 29 Evandale Street, and is set back 3.6 metres from Evandale Street. The property at No 29 Evandale Street also has a double garage with a nil side boundary setback and a 3.6 metre setback from Evandale Street.
In February 2008 the Tribunal approved a garage at No 29 Evandale Street with a nil setback to the side (western) boundary: see Kinnersly and Town of Cambridge [2008] WASAT 44. The approval was for a garage with a width of 5.44 metres and a 4.5 metre setback from Evandale Street. The garage that currently exists at 29 Evandale Street has a setback of 3.6 metres in lieu of the 4.5 metre setback approved by the Tribunal.
In August 2011, a development application was submitted to the respondent for a double garage on the subject site (No 27 Evandale Street). The proposed garage was approved in November 2011 with a nil side boundary setback to No 29 Evandale Street and a condition requiring the retention of a street tree. The approved plans and elevations of the 2011 approved garage show a 6.39 metre wide building with a 4.5 metre setback to Evandale Street, as well as the words 'existing garage (neighbour) - align new work with front wall'. There are differences between the 2011 approved garage and the garage that exists today (other than its location) including, two casement windows in the eastern elevation and string coursing to the parapet walls surrounding the roof.
Site and locality
The Tribunal had the benefit of a view of the site and immediate locality (including parts of Evandale and Birkdale Streets) in the company of the parties and their representatives on the morning of the hearing.
The subject site has an area of 637m². It is a truncated corner site with a 12.57 metre frontage to Evandale Street, a 30.61 metre frontage to Birkdale Street, an 18.61 metre rear southern boundary, a 36.65 metre side western boundary, and a corner truncation of 8.54 metres.
The site is located within the Floreat Precinct which is considered to be 'a residential garden suburb with high quality housing in a parkland setting'.[1]
[1] Local Planning Policy 2.3: Precinct P3: Floreat.
The planning officer report prepared for the respondent's Development Committee Meeting held on 18 June 2019 (Planning Officer Report) describes the locality as follows:
Surrounding development within the locality consists of single and twostorey dwellings with double carports as well as some garages located within the respective primary street setback areas.[2]
Respondent's decision
[2] Exhibit 4, page 12.
The development application was advertised and the Town received two submissions, both objecting to the proposal. This was because it was out of character with the local streetscape because of the reduced setback to the primary street.
The proposal was considered at the respondent's Development Services Committee meeting held on 18 June 2019 and, despite being recommended for approval with conditions, the Committee resolved to refuse the development application.
On 2 July 2019, at its Ordinary Council meeting the respondent refused to grant development approval for the following three reasons:
1.The applicant as part of this development application for a new dwelling seeks to retain and hence legitimise through the approval process an existing non-compliant and illegal structure being the existing garage. This garage structure was built contrary to the requirements of original 2011 approval which had sought to take into account an appropriate front setback reflecting the Towns policy position. It was constructed well forward of the approved 4.2 metre setback which is a distance still considered by Council to be appropriate for [a] double garage in this location considering its past decision, the requirements of the R Codes and the Streetscape Policy;
2.Council is not prepared to approve the current plans in view of the fact such a decision would represent a retrospective approval to the noncompliant garage and would endorse a setback distance which is considered unacceptable and contrary to the R Codes and the Streetscape policy;
3.This illegal portion of the existing dwelling should be redeveloped as part of any new designs presented to ensure compliance with the current setback requirements as reflected in the original decision. It is also noted the width of the garage was built wider than the 2011 approval allowed exacerbating the non-compliance issue and the streetscape impact.
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme and Residential with a density coding of R15, under the Town of Cambridge Local Planning Scheme No 1 (LPS 1 or Scheme).
Clause 9 of LPS 1 sets out the aims of the Scheme which are relevantly:
…
(e)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:-
(i)recognises the individual character and needs of localities within the Scheme Area;
…
…
(j)to promote and safeguard the cultural heritage of the Town by:-
…
(ii)encouraging development that is in harmony with the cultural heritage value of an area[.]
The objectives of the Residential zone are set out in cl 16(2) of LPS 1 as follows:
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complimentary to residential development.
The Tribunal is required to have due regard to the matters set out in cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations2015 (WA) (Deemed Provisions) when considering whether to exercise its discretion to grant a development approval, which include relevantly:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
…
(c)any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following-
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(y)any submissions received on the application[.]
Also relevant to the consideration of this development application are the following policies:
•State Planning Policy 7.3 Residential Design Codes Volume 1 (R Codes)
•Town of Cambridge Local Planning Policy 2.3: Precinct Policy 3: Floreat (Floreat Precinct Policy)
•Town of Cambridge Local Planning Policy 3.1: Streetscape (Streetscape Policy)
Issue for determination
It is common ground that the proposed dwelling (not including the existing garage) complies with the deemed-to-comply requirements of the R Codes and would be exempt from the requirement to obtain development approval under cl 61 of the Deemed Provisions.
However, the existing garage does not comply with the deemedtocomply provisions of the R Codes (or as substituted by the Streetscape Policy) and requires development approval in accordance with cl 60 of the Deemed Provisions. Even though an approval for a double garage on the site was granted in 2011, the existing garage has not been constructed in accordance with that approval.
Therefore, the single issue to be determined in this matter is whether the existing garage should be granted retrospective development approval as part of the proposed redevelopment of the site.
Respondent's submissions
The respondent's submissions are based on the premise that the existing garage has an adverse impact on the residential amenity of the locality because it does not maintain or enhance the character of the Floreat Precinct and its existing streetscapes. This is because at 3.6 metres it has a lesser primary street setback than any other garage in the street, except for its immediate neighbour at No 27 Evandale Street, which also has a 3.6 metre street setback to its garage. The respondent submits that the proposal is inconsistent with the open and expansive character of Evandale Street and the Floreat Precinct which, it says, is not dominated by double garages in front setback areas.
The respondent also submits that the proposed new dwelling will not lessen the impact of the reduced setback as the existing garage is not integrated into the design of the proposed dwelling and will therefore remain an incursion into the streetscape.
In regard to the existing garage at No 29 Evandale Street, the respondent submits that it has not been constructed in accordance with the 2008 Tribunal approval and therefore its current location should not inform the character of the streetscape. The respondent also says that garages and carports in Birkdale Street have lesser setbacks because Birkdale Street is generally considered to be a secondary street and the streetscape for the purposes of this review is Evandale Street which is the primary street.
Applicant's submissions
The applicant made a number of submissions in support of the retrospective approval of the existing garage on the subject site. It was the applicant's position that the existing garage is consistent with the respondent's Streetscape Policy, the R Codes, and the streetscape of No 27 Evandale Street. This is because the streetscape includes the 'totality of buildings which face each other' and this includes Birkdale Street which has buildings (within 300 metres of the subject site) that are much closer to the road than 3.6 metres.
The applicant also submits that the lawfulness or otherwise of the garage at No 29 Evandale Street does not exclude it from being considered as a significant part of the streetscape, particularly as it has been part of the streetscape since before October 2010.
Further, the applicant submits that the 'insignificant' impact of the variations to the approved garage dimensions (0.51 metres wider and 0.895 metres closer to Evandale Street) are not sufficient to warrant refusal of the development application when the proper planning considerations are applied. This is because the different dimensions make no material difference to the open and expansive character of the streetscape, the opportunity for passive surveillance, or the impact on the amenity of the area.
Finally, the applicant submits that the previous decisions made in respect of the garage on the subject site by the respondent and the respondent's planning officer, and the decision by the Tribunal in respect of the garage at No 29 Evandale Street, warrant that due regard should be given to consistency of decisionmaking.
Expert evidence
Mr Joe Algeri, an experienced town planner, represented the respondent in the proceedings and gave expert planning evidence at the hearing. Mr Algeri assessed the development against the relevant matters set out in cl 67 of the Deemed Provisions which included the provisions of the Scheme, the R Codes, and the Streetscape Policy, as well as an assessment of the compatibility of the development with its setting, its impact on amenity, and the submissions received.
Mr Algeri was of the opinion that when assessed against the design principles of the R Codes and the objectives of the Streetscape Policy, the garage, with a primary street setback of 3.6 metres, 'is an aberration on a streetscape which is otherwise devoid of such structures positioned so close to the street'.[3] It was his opinion that the positioning and form of the existing garage is inconsistent with the open and expansive character of Evandale Street and that the impact is exacerbated, not lessened, by the existence of the garage at No 29 Evandale Street.
[3] Exhibit 5, para 99.
Mr Algeri considered that the 'mere existence' of the garages at No 27 and No 29 Evandale Street in their current locations should not form part of the characterisation of what is otherwise a fairly consistent streetscape in terms of location of garages. This is because both garages have been constructed with lesser street setbacks than approved and he was unsure as to what action the respondent may take regarding the incorrectly sited garage on the adjoining property.
Finally, it was Mr Algeri's opinion that the garage is not incorporated into the design of the new dwelling and this results in 'a stand-alone structure that, with its large blank surfaces facing the street, diminishes the appearance of the dwelling, detracts from the streetscape and limits the opportunities for passive surveillance between the street and the dwelling'.[4]
[4] Exhibit 5, para 101.
The applicant represented himself in these proceedings and relied on the Planning Officer Report (prepared by the respondent's planning officer) recommending approval of the development as his expert evidence.[5]
[5] Exhibit 4, pages 11-20.
The applicant's submissions refer to a number of statements made in this report. The following excerpt from the Planning Officer Report are the officer comments made in relation to the street setback of the garage:
•The verge of Evandale Street has not changed.
•Although the primary street setback of the proposed dwelling is to be approximately 7.2 metres (at its smallest point to the terrace), the setback distance to the main line of the dwelling is to be approximately 10.4 metres. That distance is not dissimilar to the setback of the dwelling at No 29 which was considered by the SAT.
•The total surface area of buildings visible from Evandale Street consists of approximately 75% for the proposed two-storey dwelling and approximately 25% for the existing garage (which is single-storey in height), which helps minimise any domination of the garage structure within the streetscape.
•The approximate 2.8 metres separation between the proposed dwelling and the existing garage is considered to further reduce the bulk of the structure by providing visual relief between the two structures.
•The garage will integrate with the proposed dwelling by virtue of its rendered masonry, proposed new ''James Hardie Axon Cladding'', (which will replace the existing metal cladding on the eastern elevation) and metal roof, which are all materials to be used in the proposed dwelling.
•The boundary wall of the existing garage abuts an existing boundary wall to the garage of No 29, which assists in minimising the projection of blank walls to the streetscape and surrounding properties.
•The reduced 3.6 metres primary street setback of the existing garage does not result in any safety concerns for either pedestrians or vehicle as sight lines remain unobstructed.
•The two-storey design of the proposed dwelling allows for increased presentation and passive surveillance opportunities from the upper floor of the dwelling.
Notwithstanding the above, it is acknowledged that with the exception of the abutting property No 29 Evandale Street, garages within Evandale Street are generally in line with the dwellings rather than being located forward of the dwelling.
It is also noted that in the 22 November 2011 Council approval, the garage had a maximum width of 6.39 metres, however, it was constructed with a maximum width of 6.9 metres. In accordance with cl 3.1.3 of Local Planning Policy 3.1Streetscape, the deemed-to-comply maximum width of the subject garage is 9.25 metres, which is 50% of the total lot width of 18.5 metres. Notwithstanding, the unapproved 0.51 metres increase in the garage width in the setback area adds to the impact of building bulk on the streetscape.
It is therefore considered that in order to minimise building bulk projection within the streetscape, that conditions be imposed on any approval to address that, including:
•Windows to the eastern elevation of the existing garage to provide the impression of passive surveillance onto the streetscape (*).
•Landscaping along the eastern elevation.
•Architectural detailing on the garage facia (*), for the portion between the top of the garage door and the top of the overall structure as well as a visually permeable garage door to break up what is otherwise largely a blank façade (the latter modification is currently shown on the submitted application plans).
•Removal of the existing solid garage door and its replacement with a minimum 80% visually permeable garage door.
*N.B:These features were shown on the original 22 November 2011 approved plans.
For the above reasons, the application is considered to be consistent with the associated design principles and is therefore acceptable from a garage primary street setback perspective, subject to the imposition of conditions reflecting the above.[6]
Whether the existing garage should be granted retrospective development approval as part of the proposed redevelopment of the site
[6] Exhibit 4, pages 15-16.
As stated above, the applicant relied only on the Planning Officer Report as his evidence in this matter and did not present any other expert planning evidence in support of his case. The Tribunal has recently addressed the issue of reliance of a party on the recommendations of planning officers in Kogon and City of Vincent [2019] WASAT 75 (Kogon).
In Kogon the Tribunal looked at the analysis in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 and stated at [144][145] that:
144The principle that is said to arise from Dalla River needs to be carefully understood. Dalla River cannot be interpreted as suggesting that the officer's report to the planning authority is to be given weight in the exercise of discretion by the Tribunal. That simply cannot be the case especially where the relevant officer is not called to give evidence.
145In my view, Dalla River merely stands for the proposition that a review body may consider the reasoning that was applied in the professional report that was presented to the planning authority as an expression of how that planner would exercise the discretion. To me, read in context, Dalla River does not put the matter any higher than that.
As in [146] of Kogon in this case, the Planning Officer Report recommending development approval has been overtaken by the expert evidence provided by Mr Algeri. That said, the Tribunal has read the Planning Officer Report and accepts a number of the facts in it which are not contested by the respondent, including the acknowledgement that, with the exception of the abutting property (No 29 Evandale Street), the garages within Evandale Street are generally in line with the dwellings rather than being located forward of the dwellings.
The applicant made submissions regarding the assessment of streetscape with reference to Coenen and City of Nedlands [2006] WASAT 111 (Coenen) and stated that streetscape should include all the visible elements of a particular location and includes 'the totality of buildings which face each other'.[7] The Tribunal has read Coenen and does not find that it assists in the circumstances of this case. This is because the applicant's quote appears to come from [58] where the Tribunal, relying on expert town planning evidence, stated 'that ''streetscape'' includes the entire street as it comprises the totality of buildings which face each other'. The applicant submits that the totality of buildings which face each other in this case include the buildings on Birkdale Street. The Tribunal does not accept this. The subject site is a corner lot with a frontage to both Evandale and Birkdale Streets; the primary street is Evandale and the secondary street is Birkdale. This is the evidence of Mr Algeri and is confirmed by the design of the new dwelling which has a setback of 10.364 metres from Evandale Street, a much reduced setback to Birkdale Street, and its entrance facing Evandale Street. The Tribunal does accept that the streetscape in this case includes both sides of Evandale Street as seen on the site view.
[7] Applicant's Written Submissions dated 27 November 2019, para 2)a).
In relation to the assessment of streetscape character, the Tribunal relies on the evidence of Mr Algeri and finds that the relevant streetscape for the assessment of streetscape character is the section of Evandale Street to the west of Birkdale Street. As stated above both sides of this section of Evandale Street were viewed by the parties and the Tribunal on the morning of the hearing, and as described in the Planning Officer Report, garages are generally in line with dwellings rather than being located forward of them. The structures forward of the dwellings in this section of Evandale Street (on both sides of the street) are open carports and the two garages at No 27 and No 29 Evandale Street.
The applicant submitted that the previous approvals of garages at No 27 Evandale Street (by the respondent in 2011) and at No 29 Evandale Street (by the Tribunal in 2008) warranted that due regard should be given to consistency of decisionmaking. The applicant also submitted that the lawfulness or otherwise of the abutting garage at No 29 Evandale Street should not exclude it from being considered as a significant part of the streetscape.
In Nairn v Metro Central Joint Development Assessment Panel [2018] WASCA 18, the Court of Appeal briefly discussed consistency in decisionmaking, particularly in relation to the consideration of earlier decisionmaking processes which are later known to have been undertaken contrary to a planning scheme, and found at [106] the following:
106Consistency in decision making is no doubt a matter to which the Panel could properly have regard in appropriate circumstances.[8] That is so where the decision making process to which regard is had for that purpose is itself lawful. Consideration of an earlier decision making process, at least when known by the (later) decision maker to have been undertaken contrary to the requirements of TPS6,[9] is not a consideration which the Panel may properly take into account having regard to the purpose, scope and subject matter of TPS6. That is so whether or not the earlier, unlawful, decision has been the subject of challenge. …
[8] Dilatte v MacTiernan [2002] WASCA 100 [60]-[63].
[9] cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
The Tribunal addressed the concept of consistency in decisionmaking, more recently, in Churches and Shire of Collie [2019] WASAT 76 at [12][23] and found the following:
21Care should be taken not to overly elevate the concept. An administrative decision will be unreasonable if, having regard to the scope and purpose of the statutory power in question, the discretion has been abused: Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 (Li) at [67]. One must remember, in the context of development applications under a local planning scheme, for example, cl 67 of Sch 2 of the LPS Regulations provides that orderly and proper planning is one of the matters to which due regard must be given in exercising the discretion. Similarly, under the Metropolitan Region Scheme, orderly and proper planning is one of the factors (together with amenity) one should have regard to in determining a development application: cl 30(1). So one cannot elevate the desirability for consideration to be given to consistency in decision making (for the purposes of orderly and proper planning) to something greater than a matter to which due regard should be given.
22To the extent that consistency of decision-making is more generally an aspect of reasonable decision-making by an administrative decision maker, if the exercise of the discretion takes into account relevant factors, does not take into account irrelevant factors, is not an abuse of the discretionary power and does not result in a decision that lacks an evident and intelligible justification, then it would seem to be difficult to argue that the decision was unreasonable, simply because it was not consistent with a prior decision: Li at [63]-[76].
23If the decision-maker in question is the Tribunal, then regard must also be had to the fact that the practice of judicial comity does not apply to the Tribunal: Mustac v Medical Board of Western Australia [2007] WASCA 128; and see Segal v Waverly Council [2005] NSWCA 310.
In the circumstances of this case, the Tribunal is satisfied that a decision made by the Tribunal in 2008 on an adjacent site is not sufficient reason to grant approval to the existing garage on this site. Nor is a decision made by the respondent in 2011 to grant approval for a garage with a reduced street setback (4.5 metres) sufficient reason to grant approval to a similar garage with a further reduced setback (3.6 metres). Further, it appears that neither of the approved developments were constructed in accordance with their respective approvals and may not be lawful.
The applicant submitted that the 'insignificant' impact of the different dimensions (to the 2011 approval) is not sufficient to warrant refusal of the application and referred to Evans and City of Subiaco [2012] WASAT 172 (Evans). The Tribunal has read Evans and does not find it of any assistance in the consideration of this matter.
In this case, notwithstanding previous approvals and recommendations for approval, it is appropriate for the Tribunal to exercise its discretion by considering the relevant matters in cl 67 of the Deemed Provisions. As stated earlier, these matters include the provisions of the Scheme, the R Codes, and the Streetscape Policy, as well as an assessment of the compatibility of the development with its setting, its impact on amenity, and the submissions received.
The Tribunal accepts the evidence of Mr Algeri in respect of the consideration of these matters and finds that the existing garage set back 3.6 metres from Evandale Street detracts from the streetscape and the appearance of the proposed dwelling. According to Mr Algeri's evidence the Streetscape Policy requires a setback of 7 metres in R15 sites in the Floreat Precinct. This is not met by the 3.6 metre setback of the existing garage and therefore the development is to be assessed against the design principles for the setback of garages and carports in cl 5.2.1 of the R Codes:
P1The setting back of carports and garages to maintain clear sight lines along the street and not to detract from the streetscape or appearance of dwellings; or obstruct views of dwellings from the street and vice versa.
The Tribunal is satisfied that the amenity of the area includes the open and expansive streetscape of Evandale Street which has limited structures within the front setback areas. The Tribunal is also satisfied that this is likely to be the case in the future. It is evident that the introduction of the two garages at No 27 and No 29 Evandale Street has caused a significant intrusion into this open streetscape which has had an adverse impact on the character of the streetscape. This impact has been made even worse by the construction of both garages with a lesser setback than the setbacks approved in 2008 and 2011.
Conclusion
To conclude, the Tribunal is of the view that it should not exercise its discretion in favour of the proposal because the double garage in its existing location with a 3.6 metre setback from Evandale Street has an adverse impact on the character of the streetscape. The Tribunal therefore finds that the application for review should be dismissed and the decision of the respondent to refuse the development application should be affirmed.
Orders
For these reasons the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the Town of Cambridge made on 18 June 2019 to refuse development approval for the construction of two storey dwelling at No 27 (Lot 2) Evandale Street, Floreat is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R MOORE, MEMBER
10 MARCH 2020
0
12
5