WINGFIELD and CITY OF BAYSWATER
[2020] WASAT 152
•7 DECEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WINGFIELD and CITY OF BAYSWATER [2020] WASAT 152
MEMBER: MS KY LOH, MEMBER
HEARD: 15 SEPTEMBER 2020
DELIVERED : 7 DECEMBER 2020
FILE NO/S: DR 76 of 2020
BETWEEN: GUY WINGFIELD
First Applicant
MAUREEN WINGFIELD
Second Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town Planning - Proposed carport - Does not meet minimum length requirement under cl 5.3.4 of R-Codes - Risk to footpath users from overhanging vehicles – Safety and legibility to footpath - Possible risk to human safety – Adequacy of arrangements for parking vehicles
Legislation:
City of Bayswater Local Planning Scheme No 24, cl 1.6
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, cl 61, cl 61(1)(c), cl 61(1)(d), cl 67, cl 67(a), cl 67(b), cl 67(c), cl 67(q), cl 67(s), cl 67(zb), cl 68, cl 76, Pt 8
Planning and Development Act 2005 (WA), s 4(1), s 26, s 68, s 162, Pt 14, s 241(1)(a), s 250(1), s 257B, s 257B(2), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 24, s 27(1), s 27(2), s 27(3), s 29(1), s 29(3)
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 1.2, cl 2.1.4, cl 2.2.1, cl 2.2.2, cl 2.4, cl 2.5.1, Pt 5, cl 5.2.1, cl 5.3, cl 5.3.4
Town Planning and Development Act 1928 (WA) (repealed)
Result:
Application dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr R Shaw (acting as agent) |
| Second Applicant | : | Mr R Shaw (acting as agent) |
| Respondent | : | In Person |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Antunovich and City of Stirling [2011] WASAT 90
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Sunbay Development Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The owners of a house on a lot in Bayswater, Mr Guy and Mrs Maureen Wingfield, have sought approval from the City of Bayswater for the construction of a carport.
The City refused approval of the application on two grounds, one of which was that the carport did not meet the minimum vehicle length requirement under State Planning Policy 7.3 'Residential Design Codes Volume 1' (R-Codes).
The owners seek a review of that decision.
In summary, the Tribunal determined to affirm the City's decision primarily on the basis that the risk to the safety of users of the adjoining footpath from overhanging vehicles on the footpath is inconsistent with proper planning principles.
Background
The facts are largely uncontroversial between the parties.
The owners' lot is zoned 'Residential' pursuant to the City of Bayswater Local Planning Scheme No 24 (LPS 24), and is subject to a residential density code of R30.
There is a garage at the front of the owners' house, with a driveway which runs to the front boundary. The garage can accommodate two car bays.
The lot has a frontage to Darby Street, Bayswater, although access to the lot is through an internal road adjacent to Darby Street.
There is a public footpath running along the front boundary of the lot.
By development application received by the City on 4 February 2020, the owners applied to build a Colorbond steel gable carport on the current driveway.
On 3 April 2020 the City refused the development application under delegated authority for the following reasons:
(a)The proposed carport at a setback of nil to the front boundary does not comply with Clause 5.2.1 Setback of garages and Carports C1.2 of the Residential Design Codes, in that it does not comply with the averaging requirements required.
(b)The proposed carport results in the provision of a vehicle length of less than 5.4m and does (sic) therefore does not comply with Clause 5.3.4 Design of Car Parking Spaces C4.1 of the Residential Design Codes, in that it does not comply with the minimum length requirement of a vehicle that can be accommodated within the lot and that the vehicle does not overhang the verge.
The owners seek a review of the City's decision to refuse their development application.
The City no longer relies on the first reason for refusing the development application, which relates to the setback to the front boundary.
The parties agree that the length of the car parking space available in the proposed carport is 4.7 metres.
Issues for determination
The following issues arise for determination in this application:
(1)whether the development proposal complies with the car parking length in accordance with AS2890.1 under deemed-to-comply provision C4.1 of cl 5.3.4 of the RCodes;
(2)whether the development proposal complies with the design principles P4 under cl 5.3.4 of the R-Codes;
(3)whether the development proposal is consistent with the objectives of the R-Codes;
(4)whether the development proposal meets the objective of LPS 24 in terms of the amenity of the scheme area and the inhabitants thereof;
(5)having regard to relevant matters referred to in cl 67 of the 'deemed provisions' (Deemed Provisions) that have effect under s 257B(2) of the Planning and Development Act 2005 (WA) (Planning Act), whether the lot is suitable for the development proposal taking into account the possible risk to human safety and the adequacy of arrangements for parking vehicles; and
(6)whether the development proposal is consistent with orderly and proper planning and represents an undesirable outcome.
The parties' cases
City's case
The City called two expert witnesses, Messrs Chuan Giap Clement Ch'ng and Remajee Narroo, who provided witness statements and gave oral evidence at the hearing.
Mr Ch'ng is a qualified civil engineer since 2012 and is presently employed by the City as Coordinator Engineering & Waste. Mr Narroo is a planning officer who has worked in statutory planning for over 18 years, and most recently in the last two years with the City as a statutory planning officer.
The City contends that the car parking space available in the proposed carport does not meet the minimum length required under the deemed-to-comply provision under cl 5.3.4 of the R-Codes, and otherwise does not comply with the design principle under cl 5.3.4.
In Mr Narrroo's view, approving the carport proposal with an 'undersized' and 'non-standard' car parking length is inconsistent with orderly and proper planning and represents an undesirable outcome and precedent for the City.
In particular, Mr Narroo considers that the approval of the proposal will potentially allow an overhanging vehicle on the footpath, which would be inconsistent with an objective of LPS 24 to secure the amenity of the Scheme Area and the inhabitants.
It will also create a potential safety hazard for pedestrians using the footpath.
With the City having care and control over the public footpath, it would be exposed to public liability for any injuries caused to pedestrians as a result of any parked vehicle which overhangs the footpath.
Finally, any vehicle parked in the carport of a length greater than 4.7 metres would also contravene the prohibition against parking on any footpath under City of Bayswater's Parking and Parking Facilities Local Law 2016. Approving a carport with 'undersized' car parking length would put pressure on the City's resources to patrol the site to ensure that any car parking within the site does not encroach on the footpath.
Owners' case
One of the owners, Mr Wingfield, and the owners' agent, Mr Roger Shaw of Regal Patios & Carports, gave oral testimony in support of the owners' review application.
The owners submit in written submissions that the purpose of the development application is to provide shade to the garage door, which becomes extremely hot in summer and spreads heat to the interior of the house. In the hearing, Mr Wingfield stated that he wanted to protect his vehicle from the sun.
The owners contend that their development proposal complies with the design principle under cl 5.3.4 of the R-Codes.
They also challenge the precedent effect of the decision, as the City was prepared to overlook compliance with cl 5.2.1 of the R-Codes and could well do so in the case of cl 5.3.4 of the R-Codes.
The owners also fail to see how a correctly parked vehicle creates a safety hazard.
Further, the owners contend that there will be no issues of cars overhanging the footpath as they only intend to park Mr Wingfield's vehicle (a Mitsubishi Lancer) in the carport, which is shorter than 4.7 metres.
They are prepared to mark the edge of their front boundary on the driveway with a line and put up a sign which prevents visitor parking.
Finally, the owners contend that even if there were issues of cars overhanging the footpath, such issues are currently present whether or not a carport proposal is approved because the owners are already using their existing driveway to park their car.
Review jurisdiction of the Tribunal
The application form submitted to the Tribunal on behalf of the owners seeks a review of a decision in respect of a development in a planning control area under s 250(1) of the Planning Act.
However, there is no evidence that the subject lot is in a planning control area.
Instead, as stated in [53], later in the reasons, the relevant decision under review is the City's refusal to grant an approval of a development application under the local planning scheme (that is, LPS 24), which planning scheme confers on the Tribunal the jurisdiction to carry out a review in accordance with Pt 14 of Planning Act.
As such, the Tribunal takes the application to have been made under the provisions of LPS 24, namely cl 76 of the Deemed Provisions.
In determining an application under Pt 14 of the Planning Act, the Tribunal is to have due regard to relevant planning considerations including, relevantly, any State planning policy which may affect the subject matter of the application: s 241(1)(a) of the Planning Act.
This application falls within the Tribunal's review jurisdiction as a matter that expressly involves a review of a decision: s 17 of the StateAdministrative Tribunal Act 2004 (WA) (SAT Act).
As such, the Tribunal is to deal with this application in accordance with the SAT Act (with any modifications by the enabling Act) and the enabling Act: s 18 of the SAT Act.
The nature of the review by the Tribunal is that it is to be by way of a hearing de novo: s 27(1) of the SAT Act.
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.
The review is not confined to matters that were before the City but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act. Nor is the review limited to the reasons for decision or grounds for review set out in the application: s 27(3) of the SAT Act.
In determining a review application, the Tribunal 'stands in the shoes' of the decision-maker in having all the functions and discretion exercisable by the decisionmaker: see s 29(1) of the SAT Act.
The Tribunal may affirm, vary or set aside the decision (and substitute its own decision or send the matter back to the decisionmaker for reconsideration): s 29(3) of the SAT Act.
Legislative planning framework
Planning and Development Act 2005
A person cannot, without having first obtained the requisite approval of a development application under a planning scheme, commence or carry out development on land: see s 162 of the Planning Act.
'Development' is relevantly defined under s 4(1) of the Planning Act to mean the development of or use of any land, including any erection, construction, or addition to any building or structure on the land.
The definition of 'planning scheme' under s 4(1) of the Planning Act includes a local planning scheme that has effect under the Planning Act and includes:
(a)the provisions of the scheme [being relevantly the provisions set out in the scheme and any provisions that have effect under s 257B(2) as part of the scheme]; and
(b)all maps, plans, specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme.
The provisions that have effect under s 257B(2) of the Planning Act are those referred to as Deemed Provisions, which have effect and may be enforced as part of each local planning scheme to which they apply, whether they were prescribed before or after the scheme comes into force.
Further, a Deemed Provision prevails over another provision of the scheme to the extent of any inconsistency, and the other provision is, to the extent of the inconsistency, of no effect: s 257B(3) of the Planning Act.
Planning and Development (Local Planning Scheme) Regulations 2015
The Deemed Provisions are prescribed in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
The relevant local planning scheme in this case is LPS 24, which was in force under the Town Planning and Development Act 1928 (WA) (repealed), and continues in force as a local planning scheme under, and has effect as if it were enacted by, the Planning Act, pursuant to s 68 of the Planning Act.
Under LPS 24 and pursuant to s 257B of the Planning Act, the requirements for development approval are contained in cl 60 and 61 of the Deemed Provisions.
Clause 60 of the Deemed Provisions contains the prohibition against commencing or carrying out development referred to in [44] unless:
(a)the person has obtained the development approval of local government under Pt 8 of the Deemed Provisions; or
(b)the development is of a type referred to in cl 61 of the Deemed Provisions which is exempt from requiring development approval.
Review jurisdiction
As explained at [35], by virtue of cl 76 of the Deemed Provisions, an applicant for development approval may relevantly apply to the Tribunal for a review of a determination by a local government to refuse an application for development approval in accordance with Pt 14 of the Planning Act.
Relevant matters for development approval
The local government may determine a development application by granting approval (with or without conditions) or refusing to grant approval: cl 68 of the Deemed Provisions.
Under cl 67 of the Deemed Provisions, a local government is to have due regard to certain matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application.
Such matters include:
•the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme Area (cl 67(a));
•the requirements of orderly and proper planning (cl 67(b));
•any approved State planning policy (cl 67(c));
•the suitability of the land for the development taking into account the possible risk to human health or safety (cl 67(q));
•the adequacy of the proposed means of access to and egress from the site, and arrangements for the loading, unloading, manoeuvring and parking of vehicles (cl 67(s));
•any other planning consideration the local government considers appropriate (cl 67(zb)).
Significantly, cl 61(1)(c) and 61(1)(d) of the Deemed Provisions relevantly exempt from development approval the erection or extension of a single house on a lot (under par (c)) or certain structures, including a carport, on the same lot as a single house (under par (d)) if the RCodes apply to the development and the development satisfies the deemed-to-comply requirements of the R-Codes.
R-Codes
The R-Codes were prepared under s 26 of the Planning Act, and were first approved by the Governor and gazetted on 4 October 2002 as Statement of Planning Policy No. 1 'Residential Design Codes'.
Under cl 1.2 of the R-Codes, the purpose of the R-Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia.
Clause 2.1.4 of the R-Codes requires that all residential development comply with the requirements of the R-Codes, and that approval under and in accordance with the R-Codes is required if the proposed residential development:
(a)does not satisfy the deemed-to-comply provisions of Pt 5 of the R-Codes as appropriate; or
(b)proposes to address a design principle of Pt 5 of RCodes which therefore requires the exercise of judgment by the decision-maker.
Clauses 2.2.1 and 2.2.2 of the R-Codes mirror the exemption under cl 61(1)(c) and 61(1)(d) of the Deemed Provisions, and confirm that where the deemed-to-comply provisions are not satisfied and there is instead a proposal to address a design principle of Pt 5 of the RCodes, an application for development approval must be made.
Where an element of a proposal is required to address a design principle, cl 2.4 of the R-Codes provides that the decision-maker is required to exercise judgment to determine the proposal.
Judgment is to be exercised by considering the merits of the proposal having regard to objectives and balancing these with the consideration of the design principles provided in the R-Codes: cl 2.5.1 of the RCodes.
In assessing the suitability of a proposal, the decision-maker shall relevantly exercise its judgment, having regard to:
(a)any relevant purpose, objectives and provisions of the scheme;
(b)any relevant objectives and provisions of the RCodes; and
(c)orderly and proper planning.
Pt 5 of the R-Codes provides the design elements for all single houses and grouped dwellings and multiple dwellings in areas coded less than R40. One of the objectives under cl 5.3 of the R-Codes 'Site planning and design' is to ensure access to housing provides for security, safety, amenity and legibility to on-site car parking areas and footpaths for residents and visitors.
Under cl 5.3.4 'Design of car parking spaces' of the R-Codes, the deemed-to-comply provision C4.1 provides for car parking spaces and manoeuvring areas designed and provided in accordance with AS2890.1 (as amended).
The design principle P4 under cl 5.3.4 of the R-Codes provides that car, cycle and other parking facilities are to be designed and located onsite to be conveniently accessed, secure, consistent with the streetscape and appropriately manage stormwater to protect the environment.
Extracts of AS2890.1, also known as the 2004 edition of the Australian/New Zealand Standard AS/NZS 2890.1 'Parking facilities Off-street car parking', are contained in the witness statement of Mr Ch'ng of 20 August 2020 and in the City's bundle of documents filed under s 24 of the SAT Act.
Section 2.4.1 of AS2890.1 provides for dimensions of angle parking spaces, in particular, that the nominal length of a parking space in a parking module shall be 5.4 metres minimum.
Section B4.2 of AS2890.1 explains that the angle parking space length of 5.4 metres has been derived by adding a 0.2 metre positioning tolerance to the length of the B99 vehicle.
The B99 vehicle is described in section A4 as the '99.8 percentile vehicle', with a length of 5.2 metres. Mr Ch'ng describes the B99 vehicle as covering 99% of vehicles in use in the Australian market.
LPS 24
Clause 1.6 of LPS 24 provides for the general objectives of the scheme, in particular:
(a)to zone the Scheme Area for the purposes described in the Scheme so as to strategically promote the orderly and proper development of land by making suitable provisions for the use of land within the Scheme Area;
(b)to secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof; [and]
…
(k)to make provision for other matters incidental to town planning and land use.
Requirements of orderly and proper planning
The discretion to assess the proposal according to 'orderly and proper planning' requires such discretion to be conducted in an orderly way (that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious) and directed to identifying the 'proper' use of land (that is, the suitable, appropriate, or apt or correct use of land): see Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [179][180].
The judgment required in exercising the discretion must be an objective one: Marshall at [182].
In identifying the 'proper' use of land, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes and policy instruments: Marshall at [180]. If such exercise is to be an 'orderly' one, it should not lightly depart from the planning principles identified as relevant to an application without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle: Marshall at [182].
Whether there are any other matters beyond planning legislation and instruments in determining what is a 'proper' planning decision will be a question of fact to be determined having regard to the circumstances of each case: see Marshall at [181].
Consideration
Deemed-to-comply provision C4.1 of R-Codes
Pursuant to s 241(1)(a) of the Planning Act and cl 67(c) and 61(1)(d) of the Deemed Provisions, the provisions of the R-Codes are relevant in determining whether to approve the development application.
It is not contentious that the length of the car parking space available in the proposed carport of 4.7 metres is less than the minimum length of 5.4 metres required under the deemed-to-comply provision C4.1 of cl 5.3.4 of the R-Codes, and indeed the B99 vehicle length of 5.2 metres.
In the course of oral evidence and submissions from Mr Shaw, he adduces evidence of his online research that there are 295 types of cars that will fit the carport with a length of 4.7 metres. He concedes, however, that this bare figure does not give any indication of the proportion of cars which are less than or equal to 4.7 metres in length against the total number of cars in use or sold in Australia.
Mr Narroo also gives evidence that the City's research reveals 155 models of cars that are greater than 4.7 metres in length, with the two most popular cars in Australia falling into that category (the Toyota Hilux and Ford Explorer). Mr Narroo is similarly not able to give an indication of the proportion of cars which are greater than 4.7 metres in length against the total numbers of cars in use or sold in Australia.
In contrast, Mr Ch'ng attests that the length of the B99 vehicle covers 99% of cars in use in the Australian market.
In the absence of evidence as to the proportion of cars in use in Australia which will fit the carport with a length of 4.7 metres (or vice versa, the proportion of cars which will not fit such length), it is not possible to make any meaningful assessment of whether there is any planning basis for rejecting the reliance in AS2890.1 (and thus the RCodes) on the B99 vehicle length.
There is also no evidence before the Tribunal, expert or otherwise, to challenge the choice made in AS2890.1 (and thus the R-Codes) to measure the appropriateness of car parking space length against the B99 vehicle (that is, 99% of cars in use in Australia).
In oral submissions, Mr Shaw challenges reliance on a standard which was last revised in 2004, which is 16 years ago.
Mr Ch'ng attests that it is common for current standards to be of the same vintage or older. He states that Australian Standards are created by Standards Australia, and are updated when there is a need. He confirms that the 2004 version of AS2890.1 is the current version which is applied by the City and other local governments.
Mr Ch'ng also attests that the City consistently assesses the car park design of all developments within the City for compliance against AS2890.1.
On the issue of the appropriateness of relying on an Australian Standard last updated in 2004, there is no evidence before the Tribunal as whether (and to what extent) the dimensions of cars in use in Australia has changed, and thus whether the B99 vehicle dimensions have changed.
The Tribunal thus finds, even putting to one side the statutory requirement to have due regard to State planning policies such as the RCodes, there is no simply basis for challenging the application of the R-Codes (in particular, as it incorporates of the relevant provisions of AS2890.1).
Clause 5.3.4 of the R-Codes
As the minimum requirement under the deemed-to-comply provision C4.1 of cl 5.3.4 of the R-Codes has not being met, the development is not exempt from development approval.
Judgment needs to be exercised on the merits of the proposal, having regard to the objectives and provisions of the R-Codes (in particular, design principle P4 of cl 5.3.4 of the R-Codes), relevant provisions in the local planning scheme, and orderly and proper planning.
The City contends that the possibility of vehicles overhanging the footpath does not satisfy design principle P4 of cl 5.3.4 of the R-Codes, which requires a car parking facility to be designed and located on-site to be 'secure'.
In oral submissions, the City relies on the definition of 'secure' under the Macquarie Dictionary Online (2020) as 'free from or not exposed to danger; safe'.
However, to adopt the City's meaning to that word would result in the sentence in P4 being read as 'car … parking facilities are to be designed and located on-site to be free from or not exposed to danger, or safe' – that is, that the car parking facility, not pedestrians, should be safe.
The sentence does not lend itself easily to that meaning.
Instead, an alternate meaning to the word 'secure' of 'not liable to fall, yield, become displaced, etc., as a support or a fastening' (Macquarie Dictionary Online (as at 7 December 2020) presents as a better fit to the sentence in P4. When transposed into P4, it reads 'car … parking facilities are to be designed and located to not be liable to fall, yield or become displaced'.
In the Tribunal's view, the scope of P4 falls short of providing for the design and location of parking facilities to ensure safety to pedestrians using footpaths.
This interpretation is strengthened when reviewing design principle P5.1, which expressly directs vehicular access to provide vehicle access safety and pedestrian safety. Whilst accepting that design principle P5.1 relates only to access to car parking spaces, it indicates that any safety concerns for residential design of car parking ordinarily arises in the context of vehicular access points, rather than on the dimensions of car parking spaces.
Clause 5.2.1 of R-Codes
It is opportune to observe that the City had initially refused the carport proposal on another ground under cl 5.2.1 of the R-Codes due to the absence of any setback to the front boundary.
Whilst the City does not now rely on cl 5.2.1 of the R-Codes as a basis for refusing the carport proposal, the Tribunal is not bound by the City's reasons for refusal, nor, by extension, any change in the City's position as to its reasons for refusal.
Mr Narroo states in evidence that whilst the deemed-to-comply provisions under cl 5.2.1 are not satisfied, the City is content that the proposed carport addresses design principle P1 of cl 5.2.1 of the RCodes. In his view, the fact that the driveway is already being used informally as a carport means that there will be no further impact on the streetscape or appearance of dwellings, nor cause obstruction of views of dwelling from the street and vice versa. Mr Narroo accepts that this is not a formalised nor approved use of the driveway, but has in any event taken this use of the driveway into account.
In the course of submissions, the City's representative, Ms Alison Spicer (who is herself a Statutory senior planner for the City), accepts that the driveway is currently not approved as a car parking space, although acknowledges that cars do park in the driveway.
It is not apparent whether an informal and unapproved use of the driveway for parking cars can be taken into account as a relevant consideration in assessing a development application for use of the same space for the same purpose, at least as against a design principle under the R-Codes.
It would seem remarkable that an applicant is able to rely on an existing unapproved use to support compliance with a design principle under the R-Codes simply on the basis that a formalised approval would add no further impact on streetscape or obstruction to views of dwellings (and vice versa).
Despite the Tribunal having flagged a potential tension of how (and if so, to what extent) the Tribunal may take into account an unapproved use of the driveway, the City advanced no stronger submission than to acknowledge that it is a current unapproved use.
Ultimately, the Tribunal is not able to express a concluded view on this issue, as no evidence has been provided on whether, had the existing unapproved use not been taken into account, the development proposal would have addressed design principle P1 of the R-Codes.
Finally, whilst the owners essentially submit that the City's changed position in relation to cl 5.2.1 of the R-Codes undermines its reliance on cl 5.3.4 of the R-Codes and any precedent effect from the City's departure in applying cl 5.3.4, the short answer to that submission is that the Tribunal is not confined to any position adopted by the City in its interpretation of the R-Codes. Instead, as stated in [77] above, the Tribunal is statutorily bound to consider the application of the R-Codes in assessing this development proposal.
Objectives of R-Codes
In the absence of any other concerns raised by the City as to inconsistency with design principle P4 (or indeed any other design principle under the R-Codes), the Tribunal is not satisfied that the application is inconsistent with design principle P4 under the R-Codes.
The City's concerns about overhanging vehicles on the footpath, however, carry resonance in one of the objectives under Pt 5.3 of the RCodes; that is, to 'ensure access to housing provides for security, safety, amenity and legibility to on-site car parking areas and footpaths for residents and visitors'.
The Tribunal agrees with Mr Narroo's views that the potential for vehicles to overhang on the footpath creates a potential safety hazard for users of the footpath, including residents and visitors. In the Tribunal's view, such overhanging vehicles create an obstruction to the pathway, which present risks to the safety of pedestrians and cyclists if they have to navigate around the overhanging vehicle, which may include traversing onto the road on which motor vehicles are travelling.
Further, overhanging vehicles may impede the 'legibility' of the footpath area (in the sense of allowing the footpath to be 'capable of being discerned or distinguished' as relevantly defined in the Macquarie Dictionary Online (as at 7 December 2020).
As such, the potential for overhanging vehicles on the footpath is inconsistent with an objective under the R-Codes for ensuring access to housing has provided for the safety and legibility to footpaths for residents and visitors.
Objective of LPS 24
Mr Narroo further contends that the potential safety hazards of the development proposal would be inconsistent with an objective of LPS 24 of securing the amenity of the scheme area.
The word 'amenity' is defined in cl 1 of the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
In the Tribunal's view, to extend the meaning of 'amenity' to include a quality of safety in a physical area (such as the scheme area) stretches the bounds of what could be considered 'the character of an area' and is not open on this definition. The word 'amenity' as referred to the particular objective in LPS 24 is generally directed to matters of aesthetics of the environment of the scheme area, not as to safety issues.
In light of the above, and given the context in which the word 'securing' appears in this particular objective under the LPS 24, the Tribunal adopts the meaning of 'securing' as 'to get hold or possession of; obtain' (Macquarie Dictionary Online (as at 7 December 2020)).
The objective of securing amenity under LPS 24 must therefore be construed as obtaining the character in the scheme area, which includes, for example, obtaining a consistent streetscape in the scheme area. It does not however extend to considering whether a development proposal raises issues of safety hazards within a scheme area, which issues are better dealt with under more specific planning principles.
It may be possible that overhanging vehicles on footpaths affects the aesthetics of the environment of the scheme area, and so to that extent the risk of overhanging vehicles is inconsistent with this objective under LPS 24. However, to make that finding, it is necessary to establish the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality: Sunbay Development Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [20]-[21]. As that exercise was not undertaken with respect to the aesthetics of overhanging vehicles in this case, there is no evidential basis for the Tribunal to make a determination on this aspect of amenity of the scheme area.
Other relevant considerations under LPS 24
Under cl 67 of the Deemed Provisions, the City (and thus the Tribunal) can have due regard to certain matters such as the suitability of the land for the development taking into account the possible risk to human safety (cl 67(q)) and the adequacy of arrangements for parking of vehicles (cl 67(s)).
As is apparent from [109] above, one of the most pressing planning issues raised by this development proposal is the potential risk to the safety of users of the footpath, such as pedestrians or cyclists, in having to navigate around overhanging vehicles.
The Tribunal includes in the class of users of the footpath people with physical disabilities who may have particular difficulties traversing on uneven surfaces when having to navigate around overhanging vehicles on the footpath, and possibly onto the road where there is no provision for transition from the footpath verge to road.
The Tribunal also takes into account, as part of the arrangement for parking vehicles in the proposed carport, that the length of the proposed carport will not cover what has been assessed by the Australian Standards as an appropriate proportion of 99% of vehicles in use in Australia.
Other matters of orderly or proper planning?
Personal circumstances of the owners
The potential safety hazards from approving the development application must be balanced against the interest of the owners in using their lot for car parking space. In this case, the owners already have a twocar garage and so their need for car parking space is, to some extent, already met.
Any current unapproved use of their driveway to park more cars cannot be relied upon by the owners to support a need for more car parking space in this application, because it is this very need that has to be assessed as part of this application for a carport.
The fact that the City has not prosecuted or enforced planning laws against the owners for an unapproved use of their driveway does not bind the City (nor the Tribunal, upon review) to approving a development application for effectively the same use because such decision is subject to the City's own prosecutorial policies and discretion. Instead, the development application should be assessed against proper planning principles.
Whilst the owners indicate an intention only to use the carport for parking their own car, which length is less than that of the proposed carport, the development approval grants not only to the applicants as owners of the lot, but to future successors in title, approval for use of the carport to park any vehicle.
The development on the owners' lot is a permanent structure that would remain long after the personal circumstance of an owner ceases to be material: see Antunovich and City of Stirling [2011] WASAT 90 (Antunovich) at [5] and [34]-[37].
Thus, the risk to the safety of users of the footpath posed by cars parked by visitors, future owners of the lot or the owners themselves (if they replace their current car), is still a real one, and the owners' submission about limiting use of the carport to their current car is not a cogent reason to depart from the application of planning policy in the circumstance of this case: see Antunovich at [34]-[37].
Similarly, whilst the owners are prepared to mark up the front boundary on the driveway and put up a sign preventing visitor parking, there is a risk that such signage or markings may not be maintained by future owners of the lot as there is no legal requirement for them to do so.
Finally, to the extent that the owners rely on the reason for the carport, that is, to protect their car and/or their house from the sun, the Tribunal has not been taken to any particular planning principle, under either the R-Codes, LPS 24 nor any other planning instrument or policy, to support the owners' submission that that would be a proper planning factor to consider in determining the development application.
In particular, Mr Narroo expressed his view that sun exposure to the house or car is not a relevant factor in design principle P4 under cl 5.3.4 of the R-Codes. The Tribunal agrees with that view, and would go so far as to say that there does not appear to be any design principle expressed in Pt 5 of the R-Codes that includes this as a relevant factor in relation to design elements for single houses coded less than R40.
Conclusion
For reasons set out above, the Tribunal finds that the safety risk to the users of, and the impact on the 'legibility' of, the footpath from potential overhanging vehicles parked in the proposed carport is inconsistent with the objective under Pt 5.3 of the R-Codes.
Further, amongst the other relevant matters to take into account under cl 67 of the Deemed Provisions, the safety risks do not support a finding that the land is suitable for the development, nor that the proposed carport present as an adequate arrangement for the parking of vehicles.
The Tribunal therefore determines that the review application should be dismissed, and the City's decision to refuse the development application should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review of the respondent's decision dated 3 April 2020 to refuse the applicants' development application is dismissed.
2.The decision of the respondent dated 3 April 2020 to refuse the applicants' development application is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
7 DECEMBER 2020
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