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[2008] WASAT 230
General information, not legal advice.
State Administrative Tribunal (WA)
2008-10-01
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : MITCHELL and CITY OF SUBIACO [2008] WASAT 230
Town Planning - Development - Refusal - Car parking hardstand in front setback - Crossover - Right of way at rear - Recent redevelopment of site - Rear access to garage - Streetscape - Surrounding development - Impact on streetscape - Council Policy on parking - Existing and future amenity of locality
City of Subiaco Town Planning Scheme No 4, cl 22, cl 27, cl 37, cl 39, cl 41(2)(f), cl 78
Residential Design Codes of Western Australia (Variation 1) 2008 (WA), cl 6.5.4, A4.1, P4
1 An application was lodged with the Tribunal for review of the decision by the City of Subiaco to refuse a development application for a single car parking hardstand area in the front setback of a recently completed house at 39 Violet Grove, Shenton Park. The City considered that a parking bay with access off the primary street would be inconsistent with both the Residential Design Codes of Western Australia (Variation 1) 2008 (WA) and the City's Residential Car Parking and Vehicular Access policy which provide that where there is access available from a rear right of way, parking should be at the rear of the lot. The City considered that vehicle parking in the front setback would have an unacceptable impact on the existing and future amenity and streetscape of Violet Grove.
2 The applicant referred to existing crossovers and parking at the front of the majority of other houses in the street and said that the proposal would not have any adverse impact. The proposed parking hardstand at the front of the house should therefore be allowed under the exceptions available in the policy.
3 The Tribunal formed the view that whatever parking arrangements now exist on other properties in the street, future streetscape and local amenity will be influenced by the provisions of the planning instruments. Decisions on new development must be guided by the standards of those instruments. That is, new and additional parking spaces will be located at the rear where rear access is available and parking at the front of houses with access from the primary street will not usually be approved. The proposed hardstand with a parked vehicle and crossover in the front setback is considered to be inconsistent with this planning objective. The Tribunal found the proposed development to be inconsistent with the intent of the parking and access provisions of the planning instruments.
4 The Tribunal also considered whether to allow the proposed development as an exception to the parking and access objectives of the planning instruments. The City's Residential Car Parking and Vehicular Access policy provided circumstances in which a variation to the standards of the policy may be considered. The Tribunal formed the view, however, from consideration of the respective submissions of the parties, the history of development approval for the site and the objectives of the policy, that it would not be consistent with orderly and proper planning to allow the proposed additional on-site parking space in the front setback of the site as an exception to the parking and access standards of the planning instruments.
6 These proceedings involve an application brought by Dr Howard Mitchell (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for a review of the decision of the City of Subiaco (City or respondent) issued 17 April 2008 to refuse to grant development approval for a proposed hardstand car parking area in the front setback of the recently completed dwelling at No 39 (Lot 17) Violet Grove, Shenton Park (the site).
7 On 23 September 2008 the Tribunal, accompanied by representatives of the parties, viewed the front and backyards of the site, the vehicular access to nearby dwellings in Violet Grove and the right of way at the rear of the site.
8 The site is on the western side of Violet Grove and has an area of about 540 square metres. It has frontage of 15.23 metres to Violet Grove at the eastern end and at the western end a frontage of 15.23 metres to a 3 metre wide bitumen paved right of way. The recently completed single storey house on the site has at the rear, a double garage with access from the right of way. The front room of the house is set back 6 metres from the Violet Grove boundary and the adjacent front verandah is set back about 6.5 metres.
9 Photographs provided by the applicant show that lots on the western side of Violet Grove are developed with single houses while on the eastern side is a mix of single houses and grouped dwellings. Mr Stephen Allerding, a town planner engaged by the applicant as an expert, appended to his submission a survey of both sides of Violet Grove between Onslow Road to the north and Aberdare Road to the south. This showed that on the western side of Violet Grove, 13 houses had access to parking from the street of which 10 had parking in the front setback. Seven houses, one being a surrounding property, did not have vehicular access from the street at the front of the house. The 21st lot is the site. Of 24 lots on the eastern side of Violet Grove, only eight did not have vehicular access off the primary street, none of these properties surround the site. Ten had at least one parking space in the front setback.
10 The site is zoned 'Urban' under the Metropolitan Region Scheme and 'Residential' with a density coding of R20 under the City of Subiaco Town Planning Scheme No 4 (TPS 4).
Amenity: means all those factors, which combine to form the character of an area and include the present and likely future amenity.
Streetscape:
(a) means the total visual impression gained from any one location within a street including the natural and man-made elements; and
(b) is [sic] made up of the appearance of and the relationships between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.
12 Planning approval is required for the proposed vehicle hardstand under cl 22 of TPS 4. Clause 27(4) of TPS 4 outlines matters to be considered in the deliberations on a development application including:
(a) the provisions of this scheme;
(b) any relevant planning policy;
(e) any submission accompanying or relating to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenity of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
13 Clause 39 of TPS 4 requires that residential development conform to the requirements of the now Residential Design Codes of Western Australia (Variation 1) 2008 (the Codes). Element 6.5.4 of the Codes is concerned with vehicular access to on-site parking on residential lots.
14 The respondent's refusal refers to noncompliance with the requirements of cl 41(2)(f) of TPS 4 which reads, together with (g):
(2) In considering an application for development approval in the zones to which this division applies the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the following objectives:
(f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock.
(g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping.
15 Clause 78 of TPS 4 provides that the City may make planning policies. In February 2007 the City adopted policy 3.7 Residential Car Parking and Vehicle Access (Policy 3.7). The objectives of Policy 3.7 include relevantly:
2.1 To assist the development of attractive streetscapes;
2.2 To assist in the rejuvenation of degraded streetscapes;
2.3 To reduce where possible, the visibility of car parking structures from the perspective of the primary streets;
...
2.5 To provide development requirement guidance to residential developers;
...
2.7 To assist with the consolidation of onsite car parking arrangements;
2.8 To identify and assist with the removal of redundant or inappropriate onsite car parking areas;
2.9 To assist with the identification of redundant crossovers; and
2.10 To ensure that the opportunity for use of street parking by the general public is maximised.
16 Clauses in Policy 3.7 specifically relevant to this matter include:
Parking standards with respect to number, specifications and driveway access are to accord with the requirements of the Codes, except as provided for under this policy.
In order of acceptability, possible locations and access arrangements for car parking areas and structures are as follows:
Located to the rear of a property behind the dwelling, not accessed by or visible from the primary street. Lots that have vehicular access via a ROW should use the ROW for access to all required car-parking facilities.
Located and accessed off a secondary street behind the dwelling, not visible from the primary frontage of the dwelling.
Accessed off the primary street and located at the rear of the property.
Located behind the primary building line, along side the dwelling and accessed off the primary street.
Car parking areas and structures (excluding garages) located forward of the primary building line (in front of the dwelling).
6.1 Where a more acceptable method of access is available the Council will not approve access from a primary street unless such access is in accordance with the accepted existing pattern of access in the surrounding development (nominally greater than 50%).
The Council may approve a variation to the acceptable standards, location and/or access to on-site car-parking requirements under one or more of the following circumstances:
7.1 where the nature of existing development is such that the car parking requirement cannot be provided elsewhere;
7.2 where there is, in the surrounding development, an acceptable existing pattern of parking within the street setback area (nominally greater than 50%);
7.3 where it can be demonstrated that the proposed car parking arrangement would benefit a disabled or other occupant with demonstrated exceptional access requirements;
7.4 where the topography of the land is such that provision of vehicular access behind the street setback area is unduly difficult to achieve;
7.5 where, in the opinion of the Council, the proposed parking arrangement would enhance the streetscape;
7.6 where there is insufficient space to enable adequate manoeuvring into a rear parking space;
7.7 where there is insufficient space at the rear of the property to provide both the required number of onsite car bays and the minimum outdoor living area requirements stipulated in the Acceptable Development Provisions of the Codes;
7.8 where it can be demonstrated that the proposal is safer than the otherwise preferred parking location;
7.9 where existing car parking has been occurring and no other alternative option exists;
7.10 in the case of corner lots without effective access to a ROW, access to car parking facilities should be via the secondary street frontage, unless the secondary street is a distributor road or there are other traffic management reasons for locating the access off the primary street;
7.11 where a solid front fence may be supportable under the provisions of the City's Perimeter Fencing Policy, a visually impermeable door may be considered; and
7.12 in such circumstances, and provided that no significant detriment to the streetscape is likely to result, the Council may exercise its discretion to vary standards in one or more of the following ways:
7.12.1 Where it is appropriate to the nature of the dwelling and the availability of publicly available street parking, the Council may reduce the number of on-site parking spaces required by the Codes.
7.12.2 In the case of a building or dwelling for which two or more spaces are required, the Council will normally allow one uncovered space to be provided within the street setback area, on a driveway serving the other space or spaces.
7.12.3 Where the relevant street is a secondary street to the lot, and the new structure is sited behind the primary street setback line or the frontage line of an existing dwelling, the Council may approve construction of an enclosed garage.
17 The provisions above refer to the term 'surrounding development'. Policy 3.7 under 'Definitions' states that 'surrounding development':
Means the five properties on either side of the proposed development on both sides of the street (excluding laneways/right-of-ways) that the dwelling is orientated towards. More significance will be given to surrounding development that is closer to the proposed development, particularly in the case of corner lots.
18 The site is located within Precinct 10 Shenton Park listed at cl 37 of TPS 4. The City has adopted the Shenton Park Precinct Policy (precinct policy) which includes the following description of the existing character:
Streetscapes are highly urban with typical street landscaping and tight patterning of buildings and spaces. Streetscapes vary in levels of amenity, however most facilitate pedestrian movement.
19 Proposed is the development of a 6 metre long and 3 metre wide brick paved hardstanding area for the parking of a car. The hardstand would be within the front setback of the site extending from the front boundary to within half a metre of the front verandah. It would be set back 1.5 metres from the northern side boundary. At the verandah the site is about 350 millimetres lower than the level of the footpath. The applicant said there would be two inward opening gates made of pickets to match the picket fence now proposed across the front of the site and borders of shrubs and plants. Access to the parking space would be from Violet Grove, the primary street, via a new crossover that would replace the remains of the former crossover but shifted marginally to align with the proposed hardstand area.
20 The applicant said in his submission that proposed was a safe and convenient parking space that would assist Mrs Mitchell (applicant's wife), who has a chronic back complaint and finds it difficult to back her car within the restricted spaces of the right of way, and himself on the occasion when he is required to attend his laboratory at night.
21 The City refused the application for the following reasons:
(a) The proposed hardstand is contrary to the City's Residential Car Parking and Vehicular Access policy.
(b) The proposed hardstand area is contrary to Clause 27(4)(b) of the City of Subiaco Town Planning Scheme No 4 as the development is inconsistent with the City's Residential Car Parking and Vehicular Access policy.
(c) The proposal does not meet the requirements of Clause 27(4)(a), (f), (g) and (h) of the City's Town Planning Scheme as it is inconsistent with the orderly and proper planning of the locality and the conservation of the amenity of the locality.
(d) The proposal does not meet the requirements of Clause 28(3)(a) and (b)(iii) of the City's Town Planning Scheme as the proposed development is not consistent with the orderly and proper planning of the locality or the preservation of the amenity of the locality or the planning objectives of the zone.
(e) The proposal does [not] meet the requirement of Clause 41(2)(f) of the City's Town Planning Scheme as the proposed development does not enhance the amenity of the residential neighbourhood.
22 The parties initially identified the issues in this matter as whether the proposed hardstand would have any undue adverse impacts on the existing streetscape and amenity of the locality. The submissions filed on behalf the parties went further than these two points. The submissions weighted the proposed development against the relevant provisions of TPS 4, the Codes and Policy 3.7. The Tribunal considers, having regard to the planning instruments and the submissions of the parties, that the issues to be addressed are:
Whether the proposed development is consistent with the intent of the parking and access provisions of the planning instruments
23 Clause 39(3) of TPS 4 requires that residential development comply with the Codes and cl 4 of Policy 3.7 requires that parking and access accord with the requirements of the Codes, except as provided for under that policy. Vehicular Access to on-site parking is dealt with in the Codes at cl 6.5.4. Mr Allerding and Ms Natalie Goode, a planner at the City of Subiaco, engaged by the respondent, both said in their submissions that the proposed development did not comply with the Acceptable Development provision at cl 6.5.4, A4.1 of the Codes, which reads:
Access to on-site parking to be provided, where available, solely from a right-of-way available for use of the relevant lot and adequately formed and drained from the property boundary to a constructed street, or from a secondary street where a right-of-way does not exist.
24 It was common ground between Mr Allerding and Ms Goode that in the absence of achieving an acceptable development standard, the Codes provide the capacity to assess a proposal having regard to performance criteria. For parking and access the Codes list performance criteria within cl 6.5.4 P4 as follows:
Vehicular access provided so as to minimise the number of crossovers, avoid street trees, to be safe in use and not detract from the streetscape.
25 The parties weighed the proposed development against the criteria in cl 6.5.4 P4. Mr Allerding said that there would be no increase in the number of crossovers as an existing crossover was being replaced. The viewing of the site confirmed that the crossover that previously provided access to on-site parking at the front of the site, although the bitumen had deteriorated, was still in place.
26 Ms Goode said that when the development approval was granted in May 2007 for demolition of the existing house and the construction of the now completed new house with double garage at the rear, the following condition was imposed:
(h) The redundant car parking area, located at front of the property, is to be removed at the owner's expense prior to the occupation of the building.
27 Ms Goode said the applicant was informed that the now redundant crossover associated with condition (h) was required to be removed and the verge reinstated in accordance with Activities in Thoroughfares and Public Places local law 2.5(1). She said the proposed new hardstand will increase the number of crossovers to Violet Grove and therefore does not comply with cl 6.5.4 P4 of the Codes.
28 There was no dispute that the proposed crossover would avoid street trees. On safety, Ms Goode said any concerns with sight lines could be the subject of conditions if the development were allowed. She did say, however, that the development would have an 'undue' effect on the inhabitants of the locality due to safety issues arising from reversing into Violet Grove rather than the right of way which experiences significantly lower traffic volumes. Mr Allerding said the City had approved similar means of vehicular access to Violet Grove at many other houses and therefore it is reasonable to assume the proposed access from the site would not present any safety issues.
29 The Tribunal notes that access at the rear might be relatively safer because of lower traffic volumes, but is of the view that vehicles backing from single houses are unlikely to have an 'undue' effect because, although better if avoided, the practice is common to many suburban streets and is usually expected and accommodated by both road users and residents.
30 Impact on streetscape is the last item listed in cl 6.5.4 P4 of the Codes. It could be seen from Ms Goode's submissions that she considers there would be an impact on the streetscape because the development would result in the additional crossover, as discussed above, and a parking area being visible from the street. Mr Allerding said that because the development would replace an existing crossover and would simply add a paved area in the front setback there would be no impact on the streetscape. There would be no structure above the hardstand and so the house would still be visible. He expressed the view that the proposed hardstand area would have less impact than existing solid front fences and carports and garages forward of many dwellings in Violet Grove.
31 Overall, Ms Goode did not consider the proposed development was compliant with cl 6.5.4 P4 of the Codes. Mr Allerding expressed the opinion that the proposed development did satisfy the performance criteria listed at cl 6.5.4 P4 of the Codes.
32 Policy 3.7 is concerned directly with residential parking and access. Clause 5 lists in order of 'acceptability' possible locations and access arrangements for car parking. The list extends from cl 5.1 with rear access as the 'most acceptable' to cl 5.5 with 'front of dwelling' as the 'least acceptable'. Mr Allerding pointed out that no means of access was identified as 'unacceptable' and argued that Policy 3.7, particularly at cl 6.1 and cl 7.2, sets out circumstances where parking from the primary street will be allowed. He submitted that the proposed means of access might not comply with the City's preferred location but it is an acceptable form of access listed under cl 5.
33 Ms Goode said that in considering proposals under Policy 3.7, the City interpreted cl 5 in conjunction with cl 6.1 and cl 7.2. Rear access was required where available and cl 6.1 prohibited car parking access from a primary street.
34 Clause 6.1 of Policy 3.7 includes 'Where a more acceptable method of access is available the Council will not approve access from a primary street ...' With respect, the Tribunal must state that an adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policy should not be applied: Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24]. Clause 6.1 continues '... unless such access is in accordance with the accepted existing pattern of access in the surrounding development (nominally greater than 50%)'. Both parties provided analysis of the existing pattern of access to surrounding properties and both concluded that twothirds had access to on-site parking from the primary street. The respondent cannot simply 'not approve' a proposed development because of a clause in a policy. It is necessary to determine whether discretion available under TPS 4 is to be exercised to allow the proposed development.
35 Ms Goode cited Clause 6.7 of Policy 3.7, under the heading 'Development Standards', which states:
Any additional car parking areas in excess of that specified under the applicable Acceptable Development provisions of the Residential Design Codes are to be located to the rear of the property. Under these circumstances any existing parking areas located other than at the rear of the property are considered undesirable and will be conditionally removed at the owner's expense on any approval.
36 Ms Goode submitted that when granting development approval, cl 6.7 has been consistently applied to require removal of parking spaces and the associated crossover to the primary street where car parking requirements have been met with access from a more acceptable location. Should any of the neighbouring sites be redeveloped, Ms Goode says that the current location of car parking on those sites would not be supported.
37 The Tribunal has consistently adopted a purposive construction of planning instruments where the provision of the instruments are read together, rather than a literal interpretation of a particular clause. Ms Goode made reference to this approach by the Tribunal in Filton Pty Ltd and Town of Vincent [2006] WASAT 70. See [57] and [58].
38 The Tribunal has formed the view that the proposed parking bay is not consistent with the intent of the parking and access requirements of the planning instruments. Clause 27(4) of TPS 4 requires that when considering a development proposal, regard be had to provisions of the scheme and any relevant policy. In the introduction of Policy 3.7 it states (relevantly):
The City of Subiaco recognises the desire of owners and occupiers to have reasonable access to parking for private vehicles, but intends to minimise the detrimental impact inappropriately located car-parking areas and carparking structures (have) on existing streetscapes and available street parking. This occurs primarily where car parking areas and structures are inappropriately located or are constructed of undesirable materials and form.
39 The relevant objectives for Policy 3.7 listed under cl 2, set out in full above, include at cl 2.5 'provide development requirement guidance' and essential aspects of this guidance are found at cl 5 'Access and Location' and cl 6 'Development Standards'. As submitted by Ms Goode, the Tribunal's approach was to read the provisions of a policy together.
40 This is not a site with an original house developed prior to the provision of on-site parking. It is apparent that the house with a twocar garage off the right of way at the rear now on the site was recently approved by the City as consistent with the 'most acceptable' form of development in Policy 3.7 and with the 'acceptable development' criteria of cl 6.5.4 of the Codes. In addition, the City imposed a condition that parking be removed from the front of the lot consistent with the development standards at cl 6.7 of Policy 3.7, with the associated removal of the crossover from Violet Grove. This development complied with the planning intent of the two planning instruments.
41 The applicant is now seeking approval of an additional parking space to be added into the front setback of the recently approved dwelling. The proposed bay would be reintroducing an element into the streetscape that had been removed by that recent approval. The proposed development, with the resultant parked vehicle in the front setback, is considered by the Tribunal to be inconsistent with the performance criteria of cl 6.5.4 P4 of the Codes that require crossovers be minimised and that the parking and access not detract from the streetscape.
42 The Tribunal has noted the predominance of properties in Violet Grove with parking bays at the front of a dwelling with access from the primary street. It is clear that this one proposal will have minimal impact, particularly since only recently there was an approved crossover and on-site parking at the front of the site. The Tribunal considers, however, that new development should be assessed against the standards of the instruments. The Tribunal has accepted that since February 2008 the City, on granting redevelopment approval, has been guided by the requirements of Policy 3.7. Whatever parking arrangements now exist on other properties, future streetscape and amenity will be influenced by the provisions of cl 5 and cl 6 of Policy 3.7. That is, new and additional parking spaces will be located at the rear where rear access is available and parking at the front of houses with access from the primary street will not usually be approved. The proposed hardstand and crossover is considered to be inconsistent with this planning objective.
43 The Tribunal would comment, however, that while the planning instruments establish an expectation that parking and access will be located at the rear when rear access is available, there will be occasions where it is reasonable or desirable that some other location for parking and access be considered. The applicant has made submissions that in the circumstances of this case an exemption to Policy 3.7 should be granted and the proposed development approved.
Whether to allow the proposed development as an exception to the parking and access objectives of the planning instruments
44 Mr Allerding said that streetscapes of Subiaco are highly varied and Policy 3.7 should not be applied in a rigid manner in each and every circumstance for that reason. It is necessary to consider the specific circumstances of Violet Grove. He said that if this application was refused, the site and the adjacent property would be the only mid-block lots in this section of Violet Grove without access from the primary street.
45 Mr Allerding submitted that the proposed development should be allowed as a variation to the most acceptable method of access. This was because the access would be, as provided in cl 6.1 of Policy 3.7, 'in accordance with the accepted existing pattern of access in the surrounding development'. As required by cl 6.1, well in excess of 50% properties have primary street access. It is also because, as required in cl 7.2 of Policy 3.7, there is 'in the surrounding development, an acceptable existing pattern of parking within the street setback area'. Mr Allerding said the City has accepted the development of parking at the front in greater than the 50% of properties in the street as stipulated in cl 7.2. He said this pattern of access is likely to remain in the long-term and so the proposal would not have any detrimental impact on the Violet Grove streetscape.
46 Mr Allerding referred to Koong and City of Subiaco [2008] WASAT 7 (Koong), which dealt with an application for a hardstand in the front setback of a single house in Shenton Park. He said this was the most recent relevant decision and the hardstand, and the associated crossover, was approved. Mr Allerding cited from that decision the following:
47 Ms Goode weighed the proposal against each of the subclauses of cl 7 of Policy 3.7 and her conclusion was that requirements for allowing a variation were not satisfied. She found, in summary, that a parking space could be provided at the rear of the site with access of the right of way without compromising outdoor living area, topography is not a concern, there would be sufficient manoeuvring space, and in her opinion parking in the front setback and the crossover would not enhance the streetscape.
48 Examination of the circumstances in Koong identified features which distinguish it from the current proposal. The site in Koong was on the north side of Evans Street, Shenton Park with a paved right of way at the rear. The dwellings on the south side of Evans Street did not have access to a rear right of way and therefore all on-site parking required access with a crossover from the primary street. In the current matter, houses on both sides of the street have access to a rear right of way.
49 A further item is that in Koong it was proposed that an existing character house be retained. To provide contemporary accommodation there were additions to the rear of the dwelling which reduced the effective backyard space. The Precinct Policy includes a general preference for the retention of dwellings contributing to streetscape character. There was no evidence before the Tribunal of any other decisions on applications for redevelopment or upgrading in Violet Grove made after February 2007. In the matter currently before the Tribunal, the construction of a new dwelling has been recently completed.
50 The Tribunal accepts it is necessary to have regard to the circumstances of the matter but also to the intent of Policy 3.7. The Tribunal is of the view that other residences having crossovers and parking in the front setback does not, as a matter of course, lead to the same being granted in this case. In the current matter the Tribunal is of the view that the ultimate form of development in Violet Grove will be influenced by houses on both sides of the street having access from a rear constructed right of way.
51 In TPS 4 amenity is defined to mean 'all those factors which combine to form the character of the area for residents and passers-by and shall include the present and likely future amenity'. Policy 3.7, if consistently applied, will by its terms strongly influence likely future amenity. A reasonable future amenity expectation might well then include a streetscape in which there are fewer crossovers and parked cars within front setbacks, unless application to that standard is unreasonable or undesirable in the particular circumstances of a case.
52 The applicant has pointed out that the proposed crossover would essentially replace an existing crossover. From the evidence, it is noted that the existing crossover is not in exactly the same location and is in poor condition. Essentially, a new crossover would have to be constructed. A further consideration is that as a result of the approval of the new dwelling on the house, the existing crossover was to be removed. It is not known what the City's approach would have been had parking at the front been included in the redevelopment proposal, but the development approved was consistent with achieving the objectives of Policy 3.7. The additional parking bay is proposed subsequent to the recent redevelopment of the site which had removed redundant less acceptable parking arrangements.
53 Clause 7.2 does provide a circumstance in which a variation to the standards of the policy may be considered. The Tribunal has formed the view, however, from consideration of Ms Goode's submission on the variation clauses, the history of development approval for the site and the overall intent of Policy 3.7, that it would not be consistent with orderly and proper planning to allow the proposed additional on-site parking space in the front setback of the site as an exception to the parking and access standards of the planning instruments.
54 The Tribunal notes that there has been a further decision by the Tribunal, differently constituted, concerning a hardstand area in Subiaco. This is Aris and City of Subiaco [2008] WASAT 137 (Aris). In the summary of the decision the Tribunal stated:
55 The Tribunal is persuaded by the determination in Aris. Decisions on new development must be guided by the standards of the instruments now in place since February 2008 for Policy 3.7 and April 2008 for the Codes. While less 'acceptable' parking arrangements now exist on other properties in the street, future streetscape and amenity will be influenced by the provisions of cl 5 and cl 6 of Policy 3.7. That is, new and additional parking spaces will be located at the rear where rear access is available and parking at the front of houses with access from the primary street will not usually be approved. The proposed hardstand and crossover with the resultant parked vehicle in the front setback is considered to be inconsistent with this planning objective. In its consideration of the first issue, the Tribunal has found that the proposed development is inconsistent with the intent of the parking and access provisions of the planning instruments.
56 The second issue was whether to allow the proposed development as an exception to the parking and access objectives of the planning instrument. Clause 6.1 and cl 7.2 of Policy 3.7 provide a circumstance in which a variation to the standards of the policy may be considered if the only consideration is current access to other properties in the street. The Tribunal has formed the view, however, from consideration of the respective submissions by the parties, the history of development approval for the site and the objectives of Policy 3.7 as a whole, that it would not be consistent with orderly and proper planning to allow the proposed additional on-site parking space in the front setback of the site as an exception to the parking and access standards of the planning instruments.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2002) 122 LGERA 433