Choice Constructions Pty Ltd v Town of Vincent

Choice Constructions Pty Ltd v Town of Vincent - [2005] WASAT 278 - WASAT 2005 case summary — Zoe

[30]

16 Clause 17 of TPS 1, which reinforces the objective stated in cl 5, divides the Scheme Area into the Precincts set out in the Precinct Planning Policies contained in the Council's Policy Manual. The subject land is located in Precinct "P5 West Leederville". This precinct area is further divided into subprecincts in the Residential Design Guidelines Precinct Statements, which identifies the subject land within "Sub Precinct 5B Cambridge Street East".

17 In the "Zoning Table", contained in TPS 1, the use class "Dwelling (Single)" is classified as a "P" (permitted) use in the "Residential" zone and as such, the proposed development is a permitted use.

18 Under subclause 33(1)(e) of TPS 1, planning approval is not required for the erection of a single dwelling house on a lot in a zone where the proposed use is designated as a "P" use, except as otherwise provided for by the Scheme. Notwithstanding this provision, any person who wishes Council to exercise discretion under the Codes or a Planning Policy must seek Council's approval for the variation (subclause 33(2)). Thus, the matter came to be determined by the respondent as the proposal involves numerous departures from the Acceptable Development provisions of the Codes relating to such matters as plot ratio, setbacks, overshadowing, carport width, driveway width and location, paving area, wall height, open space and visual privacy.

19 Before granting approval to the requested variations, the Council must satisfy itself, in the first instance, that the discretion requested is one which the Council has the power to approve and secondly, that granting of that discretion would not compromise the objectives of the Codes or Planning Policy (subclauses 33(2)(a) and 33(2)(b)). The Codes identify both "General Objectives" and "Specific Objectives" and require that in assessing and determining applications for residential development, regard must be had to both categories of objectives. Given the number of variations sought, the "General Objectives", in this instance, are of particular importance in ensuring that the overall development meets the desired goals for residential development. The relevant "General Objectives" are as follows:

[46]

26 Mr Allerding argued that the combination and extent of variations sought resulted in an over development of a particularly small lot which would have a significant adverse impact on the adjoining lot to the south (Lot 156) and would not be consistent with the pattern of development in Kerr Street or the locality. Mr Allerding also addressed each variation individually.

27 In relation to plot ratio, Mr Allerding contended that the degree of variation sought to the plot ratio was significant and that it indicated that the bulk and scale of development was in excess of what a land parcel of 183 square metres in area is ordinarily intended to support, in terms of built form, under the Codes. He also produced a plan showing examples of the plot ratio calculations for some developments on lots in Kerr Street. From this information he asserted that the proposed development was not consistent with the nature and scale of other developments in Kerr Street.

28 Overshadowing of the adjoining lot to the south (Lot 156) relates to the height of the wall (6.0 metres to 6.2 metres) and the setback to the common boundary, which in this instance is nil. Mr Allerding asserted that as a result of the proposal, 75 per cent of Lot 156 would be in shadow at midday on 21 June of any year. He argued that the extent of overshadowing would significantly impact on the light and ventilation available to Lot 156, which would prejudice the nature and form of future development on the lot. The Tribunal requested that a shadow diagram be provided by the respondent demonstrating the extent of overshadowing for the proposed development and the change in the shadow cast if the dwelling was set back 1.6 metres in compliance with the requirements of the Codes. The shadow diagram showed that at midday on 21 June, the proposed development would cast a shadow covering approximately 77 per cent of Lot 156 and when set back the required 1.6 metres, the overshadowing would be reduced to 61 per cent. This figure may be a little higher, as the calculation also included setting the carport 1.6 metres from the boundary.

29 The argument presented by Mr Allerding concerning the setback and width of the carport focused on the structure's prominence within the street. He considered that the carport would dominate the front of the proposed development, which would be undesirable as it would significantly diminish the character of the streetscape. Mr Allerding asserted that within Kerr Street most of the dwellings either had no carport or, where a structure existed, it was either set back from the street, designed to accommodate a single car only, or did not exceed 50 per cent of the frontage of the lot. Mr Allerding further argued that the setback to the carport was inconsistent with the established line and pattern of setbacks in Kerr Street. Mrs Sweetland, under crossexamination, conceded that there weren't any double width carports built to the street setback in Kerr Street.

30 The open space deficiency was of concern to the respondent and the reasons asserted by Mr Allerding centred on the need for the provision of adequate open space, as the type of dwelling proposed indicated family use, and the public domain could not be ordinarily expected to compensate for a reduction in recreation space of over 20 per cent.

[47]

31 The applicant claimed that the proposed development had been designed in close consultation with planning officers of the Town of Cambridge, which was evidenced by the fact that the respondent's planning officers recommended approval to the proposed development.

32 The applicant contended that the variations sought were minor in nature and would have no adverse impact on any neighbouring property. The applicant further contended that given the size and dimensions of the subject lot, development would undoubtedly be two storey if it was to meet modern expectations for new housing and that full compliance with the Acceptable Development provisions of the Codes was not practical. The applicant considered the living area of the house to be modest and the outdoor area was sufficient to meet the needs of the future occupants. In regard to the carport, the applicant argued that the structure was open and permitted visual interaction between the street and the dwelling and would not adversely affect the streetscape of Kerr Street. A number of photographs were provided to the Tribunal to demonstrate the respondent's acceptance of carports within the front setback area within West Leederville and Kerr Street.

33 Mr Sweetland, in his written response, confirmed that a small portion of the southern boundary wall located at the front of the site measured 6.2 metres above natural ground level. The increased wall height was attributed to the sloping nature of the site, and he submitted that it was a very minor variation, which would not have any significant impact on the direct sun and ventilation to the Lot 156.

34 The applicant was of the view that the proposed development would have zero impact on Lot 156 in terms of overshadowing, as it was likely that future development on Lot 156 would abut the proposed parapet wall of the development. The applicant also pointed out that the owner of Lot 156 did not raise any objections to the proposed development.

35 It should be noted that there was very little evidence to support these assertions.

[48]

36 The proposed development requires a significant number of variations to the Acceptable Development provisions of the Codes. This in itself is not fatal to the application as the Codes are concerned with the fundamental aspects of good design and achieving the best planning outcome through a "performance" approach. As the former Town Planning Appeal Tribunal found, and this Tribunal agrees, where there is noncompliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather, the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective: Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4. Therefore, the focus should not be the number of variations sought or the extent to which the variations differ from those set out as Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the Codes.

37 From the evidence presented, the Tribunal is not convinced that the proposed development satisfies either the General Objectives or all of the relevant Specific Objectives of the Codes. The Tribunal is of the opinion that the proposed double carport is not consistent with the established line and pattern of setbacks in Kerr Street and its dominance in the street would detract from the streetscape, which does not satisfy Performance Criteria cl 3.2.3P3 of the Codes or meet the objective of Design Element 2, which is "[t]o contribute towards attractive streetscapes ... ".

38 In relation to plot ratio, building height, setbacks to the southern boundary and overshadowing, the Tribunal is cognizant of the coding of the subject land and the resultant size of the lot. However, the Tribunal does not consider the applicant has satisfactorily addressed the adverse impacts of the proposed development on Lot 156 or produced sufficient evidence to demonstrate that the Performance Criteria of the relevant Design Elements have been satisfied, but has simply relied on the fact that the current owner did not object to the proposed development and that the impacts would be ameliorated as future development of the vacant lot would probably abut the proposed boundary wall (which may not necessarily be the case as other design alternatives are available). The Tribunal is of the opinion that the proposed design of the dwelling does not fulfil the objectives or satisfy the Performance Criteria of the relevant Design Elements of the Codes as the impact of the building bulk on the adjoining property will have a significant adverse effect on the adjoining property. Furthermore, given the size of the lot and the type of dwelling (family use), the Tribunal in considering the issue of open space is not satisfied that the open space around the dwelling is sufficient in area to suit the needs of the future occupants of the dwelling. As such, this aspect of the design does not satisfy Performance Criteria cl 3.4.1P1 of the Codes.

39 One of the fundamental aims of the Codes is to minimise the adverse impact of proposed residential development on neighbouring residents. The Tribunal does not consider the design of this development achieves this goal and, as such, it is of the opinion that approval to the variations as sought would compromise the objectives of the Codes, resulting in an outcome that would not accord with the principles of orderly and proper planning.

40 For the above reasons the Tribunal makes the following orders:

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Judgment (49 paragraphs)

Sweetland and Town of Cambridge [2005] WASAT 278 (18 October 2005)

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