Town planning ­ Application for approval to commence development ­ Orderly and proper planning ­ Preservation of amenity ­ Front setback area ­ Equity ­ Public right­of­way ­ Double carport ­ Impact on the streetscape ­ Performance criteria ­ Acceptable development provisions

Planning and Development Act 2005 (WA), s 252(1), s 241(1)

Town of Vincent Town Planning Scheme No 1, cl 10, cl 19, cl 38(5), cl 47, cl 47(1), cl 47(2), cl 47(9)

1 The application for review was lodged against a decision of the Town of Vincent to refuse the construction of a double carport within the front setback area at 46 Edinboro Street, Mount Hawthorn.

2 The Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislation and policy provisions and matters of orderly and proper planning, amenity and equity.

3 It was determined that the weight of argument favoured the respondent as there was no overriding justification to set the provisions of State and local policy with respect to vehicular access from a public rear right-of-way to one side.

5 The application for review, dated 23 May 2007, was lodged by Mr Michael Whitbread on behalf of Mr John Riede (applicant) against a decision, dated 26 April 2007, of the Town of Vincent (respondent) to refuse an application for the construction of a double carport within the front setback area at 46 Edinboro Street, Mount Hawthorn.

6 The application for review was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).

7 The grounds for review can be briefly summarised:

On-site parking and access already exist from Edinboro Street and the proposal would result in the status quo remaining in terms of parking and site access.

The rear right-of-way has no public lighting and poor passive surveillance and is characterised by back fences and double garage doors.Parking within the front setback provides increased security due to passive surveillance from the house opposite and night-time street lighting.The recently approved rear additions to the house are designed to rely on a rear courtyard area to provide amenity. Hardstand car parking at the rear would detract from this design element and remove plans for a swimming pool.

8 The subject land is described as lot 90 (No 46) Edinboro Street, Mount Hawthorn on Certificate of Title Volume 1088, Folio 190 on Plan or Diagram 2790.

9 The property, which is located on the east side of Edinboro Street, faces due west. It has a frontage of 12.19 metres and a depth of 36.57 metres and a site area of 445 metres squared.

10 There is an existing single storey brick and tile residence on the site together with a flat-roofed single carport positioned within the building setback. There is a solid brick front boundary wall at a height of some 1.6 metres and there is a sealed and drained public right-of-way (ROW) at the rear of the property.

11 According to the applicant's Statement of Issues, Facts and Contentions the floor level of the house is some 520 mm lower than the front boundary, and estimated at approximately 1 metre lower than the crown of the road.

12 The subject land is zone "urban" in the Metropolitan Region Scheme (MRS) and "residential R30" under the Town of Vincent Town Planning Scheme No 1 (the Scheme or TPS 1)

The Residential Design Codes - Western Australian Planning Commission, October 2002 (the Codes)

Town of Vincent Planning and Building Policy Manual - Residential Design Guidelines - Design Elements (the Manual)

14 Within the Manual are a number of policies relevant to the matter. These include:

Policy No 3.2.6 (Vehicular Access)Policy No 3.3.5 (Ellesmere - Locality Plan 5)

15 The position of the respondent is best outlined in the reasons for refusal. These are:

the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality; and

the non-compliance with the Town's Policies relating to Vehicular Access and Street Setbacks as the carport is required to be accessible from the rear/eastern right-of-way, which is 5 metres wide, Town-owned and sealed."

16 In the respondent's Statement of Issues, Facts and Contentions, dated 21 June 2007, they also contend:

"It is the Town's view that the proposal of this nature will have a detrimental impact on the intention of the Ellesmere locality and therefore, an undue impact on the streetscape and the amenity of the immediate and surrounding area."

17 The applicant's position is outlined in a Statement of Issues, Facts and Contentions prepared by Mr Whitbread, a qualified Town Planner. He contends:

The merits of the application have not been given due consideration in relation to the Performance Criteria available under the Town's policies.

The removal of portion of the solid front screen wall to accommodate the additional car parking bay, and the construction of a sympathetic carport in terms of design and materials would enhance the amenity of the locality by simply improving the visual relationship between the house and Edinboro Street.The respondent's statement that "The development is not consistent with the orderly and proper planning ... of the locality" is inequitably applied in this part of Mount Hawthorn due to a number of carports to original houses in the immediate street block.The proposed development complies with that part of Policy 3.2.56 which states "... new development does not overpower the existing streetscape".The proposed development would allow an additional vehicle to be parked on-site rather than on the grass verge. The proposed double carport has been designed to comply with the intent of the respondent's Policies 3.2.4 and 3.2.6 and Design Element 3.2.3 of the Codes. It appears inequitable that properties that do not adjoin a public ROW are able to enjoy a higher level of private amenity, by having covered car parking in the front setback, than those adjoining a public ROW.

Is the proposal consistent with orderly and proper planning and the preservation of the amenity of the locality?

Is it a reasonable proposition, in the circumstances of this case, that the proposed new carport be located at the rear of the property and adjacent to the existing sealed public ROW?

18 In October 2006 the applicant engaged McLeod Design to prepare drawings for alterations to the existing dwelling and a two-storey residential addition. The proposal also included an open deck and patio and small swimming pool at the rear of the dwelling and the construction of a new double carport (6.0 metres by 5.6 metres) in the front setback area.

19 An "Application for Approval to Commence Development" (MRS Form 1) was lodged on 29 December 2006 and an approval was subsequently issued for the residence only. In other words, that part of the application relating to the double carport was excluded from the decision.

20 On 26 April 2007 a refusal for the double carport was issued.

21 Under cl 10 the overall Scheme area is divided into precincts and for each precinct there is a corresponding planning policy. The subject land falls within the Ellesmere locality of the Mount Hawthorn precinct (P1).

"Unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes."

23 The Residential Design Codes replaced the Residential Planning Codes in October 2002.

Under cl 38(5) (Determination of Application - General Provisions) it advises:

limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to:

(d) any Statement of Planning Policy of the Western Australian Planning Commission;

(g) the orderly and proper planning of the locality;

(h) the conservation of the amenities of the locality; and

(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."

The Council may make planning policies, which are to

(a) relate to an aspect or aspects or development control or any other matter relevant to this Scheme and

(b) the orderly and proper planning of the locality;

(c) the conservation of the amenities of the locality;

A planning policy prepared under this part of the Scheme shall be consistent with the Scheme text and where any inconsistencies arise, the provisions of the Scheme text shall prevail."

25 It is clear to the Tribunal that there is a strong policy context within TPS 1, and matters of orderly and proper planning and amenity are considered important considerations as they are repeated several times within the Scheme text.

26 Under the "Desired Future Character" the policy advises:

"Front setback areas are to be landscaped and, preferably, devoid of parking spaces. Where available, on-site parking is to be accessed from a right-of-way."

27 There is no distinction with respect to on-site parking between a vacant site, where a new development is taking place, and the redevelopment (additions and renovations) of an existing structure.

28 Under cl 6 (Carports and Garages) of the Policy it advises:

"... Carports are acceptable, because they allow a clear view between public street and private dwelling ... However, all carports are to be designed in such a manner that the carport forms part of the existing dwelling ... Car parking is to be accessible from existing rights-of-way where (legally) available. Consequently, the Town of Vincent accepts that, where no feasible alternative exists, the street setback area may be utilised for carports and unroofed parking spaces ... Carports may be permitted to be located within the front setback area, where no alternative exists, provided its width is no more than 50 per cent of the front elevation width of the existing dwelling as visible from the street ..."

29 The policy includes Acceptable Development provisions by which development can be "deemed to comply" and Performance Criteria which:

"... allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."

30 However, further flexibility is built into the process under Note (2) of the Policy:

"The above Performance Criteria and Acceptable Development is a guide for development and each proposal will still be dealt with on its merits by the Town of Vincent."

31 An examination of the Acceptable Development provisions confirms compliance with the Policy relating to vehicle access to dwellings via an existing right-of-way where legally available (A 2.1 and A 2.7), but no such mention is made under the Performance Criteria.

The setting back of carports and garages so as not to detract from the streetscape or appearance of dwellings or obstruct views of dwellings from the street."

33 What the intention of the Policy appears to be is to frame a set of Acceptable Development provisions and Performance Criteria but under an umbrella of still requiring access from a right-of-way where legally available. It is assumed that such a requirement is intended in all cases, whether it be new development on a vacant site or modifications/additions to an existing dwelling.

34 What is clear are the flexibility provisions of the Policy outlined in [32] which allow each case to be dealt with on its merits.

35 The Policy advises that a significant proportion of houses in the Town were built without provision for on-site car parking and that:

"... the streetscape is more seriously affected in the case of narrow lots, due to the proportion of frontage taken up with driveways, and the presence of carports and garages within the street setback area".

"... it is the Town of Vincent's aim to require utilisation of rear rights of way wherever possible, and with that, to reduce the number and width of crossovers to the street."

37 A further point made in the Policy is that in those residential areas with narrow frontage lots the provision of crossovers from the street significantly reduces opportunities for on-street parking, so that on-site parking provision does not necessarily ease the street parking problem.

38 Under cl 2.6 a Local Planning Policy can be prepared in relation to the streetscape and can include "the siting of carports and garages". The matter of development within the street setback area is addressed in cl 3.2 in the following way:

"(a) As a generalisation, the street setback area should be open, enabling a clear view of the building from the street, and vice versa ...

(b) Because so many houses in established suburbs were built without provisions for motor vehicles street-side parking and parking within street set-back areas have become essential, especially where rear access to the property is not available.

(c) Consequently it is accepted that, where no feasible alternative exists, the street setback area may be utilised for carports and unroofed parking spaces. Carports are acceptable, because they allow a clear view between a public street and a private dwelling."

39 It is clear that the Codes anticipate that where rear access is available that carports and garages should be positioned at the back of the property and not the front. The rationale is essentially based on the need for the street setback area to be open, and thereby contribute towards attractive streetscapes and security for occupants and passers-by.

40 The respondent has moved to reflect this rationale in its Policies 3.2.4 and 3.2.6.

41 This matter is important in the context of this review as it represents a prime reason for refusal of the application.

42 The approach adopted by the Tribunal in matters of this kind is to assess the proposal against both State and local policy and statutory provisions. A similar approach is adopted in this review.

43 The matter of amenity can be examined from both the perspective of the general public and the individual applicant for development. The Codes incorporate the two approaches.

44 In this matter the respondent argues that the proposal would be contrary to the preservation of the amenity of the locality.

45 The applicant, through Mr Whitbread, argued at the hearing:

"If the Town is concerned about amenity, I think amenity is a two-edged sword. There are two parts to it. There is public amenity, what it looks like from the street, and the other is the internal amenity of the site. From the plans that were submitted with my original application there is a substantial north-eastern facing courtyard where a pool is contemplated. Although Mr Bain said, "Well, it doesn't exist. There is no loss "I think the loss of opportunity is substantial on a 455 square metre block, or however big is it, to have a good outdoor living area between the living areas and a courtyard, and that would be taken away."

46 In the view of the Tribunal, consideration must be given to both perspectives, but it is the overall community benefit that must be accorded the greatest weight.

47 This matter was raised by Mr Whitbread at the hearing in the context of fairness; whereby a landowner abutting a ROW is required to park at the rear of the property, but a landowner not abutting a ROW is able to have a carport within the front building setback area.

48 The following exchange took place between Mr Whitbread and Mr Simon John Bain, a qualified town planner for the respondent.

"Mr Whitbread: So it is asking those owners to do it but those owners who do not adjoin a publicly owned and paved right-of-way are able to have carports in the front under policy 3.2.4. Is it an unfair burden to put that on a certain section of landowners as opposed to others who are allowed to have them and some are not, purely on the basis of their having a publicly owned right-of-way at the rear?

Mr Bain: Well, first of all, it is not relevant to this matter. There is a private - sorry, a publicly owned right-of-way that is available and the Council has consistently applied its policy. The Council applies its policies relevant to the circumstances. In this case, there is opportunity to preserve the open streetscape. "

49 In the view of the Tribunal the objective of the respondent's policies are essentially related to streetscape, but also to utilise a public asset in the form of a drained and sealed ROW to gain vehicular access to the rear of private property.

50 There are circumstances where, because of zoning and lot size, it is possible to subdivide directly onto the ROW to the advantage of the landowner. That circumstance is not available in his instance, and the applicant perceives the ROW as inequitable and a disadvantage in the pursuit of his development objectives.

51 In the witness statement of Mr Bain, dated 28 June 2007, he provides carport statistics for the eastern half of the Ellesmere locality in the following

"The inspection of the area showed the area is typically "open" streetscapes with only 36 (12.2%) of the properties having carports in the front setback area."

54 In the applicant's Statement of Issues, Facts and Contentions a number of examples of double carport developments are shown in the immediate vicinity of the subject site. However, there is no information before the Tribunal to consider whether any of these properties have a rear public ROW or whether they were approved prior to, or after, the formation of the Town of Vincent.

55 In his submissions to the Tribunal Mr Whitbread argued:

"Some of the concern, I think, with the applicant is that with three daughters, and they are all approaching driving age, to have to park the car at the rear at night-time without lighting - I think it is a little bit hard by the Town of Vincent to require that without having to provide lighting, street lighting. At the same time, for security there is a substantially added cost of rather than just having an open carport in the front to have automatic doors at the back."

"Sir, there is nothing preventing the applicant to submit lighting and most people actually do provide some form of lighting for their carport or garage at the rear. "

57 In an associated exchange with Senior Sessional Member Graham the following response was given from Mr Whitbread:

"Mr Graham: If the decision was to go against the applicant would the applicant contemplate building a garage at the rear of the property adjacent to the right-of-way as opposed to a carport?

Mr Whitbread: My view is that, and from discussions with them on site, they would not contemplate either a carport or a garage at the rear."

The Tribunal has previously dismissed similar applications for review in this locality."

59 An examination of the two cases stated: namely, Rice & Anor and Town of Vincent [2007] WASAT 108 and Terry and Town of Vincent [2007] WASAT 43, shows that the latter was an application for the demolition of an existing dwelling and the construction of a new dwelling incorporating a garage. As such its relevance to this case under review is not clear.

60 However, in the case of the former the application was for additions and renovations to an existing dwelling at 114 Shakespeare Street, Mount Hawthorn, and there is a sealed ROW at the rear. The application for review was dismissed.

61 In his submissions Mr Whitbread argues that in Rice & Anor and Town of Vincent the:

"... applicant clearly had the opportunity to incorporate the covered car parking behind the building line, while incorporating the benefits of direct street access."

62 What needs to be said is that the Tribunal is not led or constrained by previous decisions, but must judge each case on its merits. However, in doing so it is also clearly preferable, from the community standpoint, that there be some overall consistency in the decision making process.

63 The application for review was lodged against a decision of the Town of Vincent to not approve the construction of a double carport within the front setback area.

64 In its examination the Tribunal has had regard to the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of orderly and proper planning, amenity and equity. A range of other matters were also assessed, including two recent decisions the Tribunal in the Town of Vincent.

65 The position taken by the respondent is that the proposal is contrary to orderly and proper planning and would not accord with the principal tenet of their policies that where available, such as in this case, access should be provided via an existing public ROW.

66 The applicant argues that the merits of the proposal have not been given due consideration under the relevant Performance Criteria and that a double carport that is sympathetic to the design of the existing residence would enhance the amenity of the locality. The argument is also put that landowners, who do not have a rear public ROW, would receive an approval for a carport in the front setback area.

67 From the examination of TPS 1 it is clear that there is strong policy context and matters of orderly and proper planning and amenity are important planning considerations.

68 In that sense there is a policy direction set in the Ellesmere locality that front setbacks should preferably be devoid of parking and, where available, on-site parking should be accessed from a ROW.

69 The same direction is pursued in the "Street Setback" and "Vehicular Access" policies and although there are associated Acceptable Development provisions and Performance Criteria they appear to be framed under an umbrella of still requiring access from a ROW when legally available.

70 Having said that, there is still a "flexibility" provision in the policies which allows Council to consider each case on its merits.

71 Of importance are the Codes which have been prepared as a State Planning Policy (SPP) and the Tribunal is required, under s 241(1) of the PD Act "to have due regard to relevant planning considerations" within the SPP.

"... where no feasible alternative exists, the street setback area may be utilised for carports ..."

73 Of course in the circumstances of this case a feasible alternative does exist in the form of a rear public ROW.

74 On the matter of amenity the Tribunal would acknowledge that by the removal of the existing unattractive single flat-roofed carport and portion of the front brick wall, and its replacement with a sympathetically designed carport, that the streetscape would be improved to a degree.

75 However, it must be said that the width of the proposed carport would be more than 50% of the front elevation width of the existing dwelling. In that sense it would be contrary to the provisions of Policy 3.2.4.

76 From a planning viewpoint the best result would be the removal of both the single carport and the front wall which would then allow the street setback area to be open with a clear view of the building and vice-versa. The vehicles could then be re-located to the rear.

77 On the matter of equity it does initially appear anomalous that if a rear public ROW did not exist that the proposed development would probably be approved within the setback area by the respondent.

78 However, the simple fact is that the ROW does exist and would be perceived as an advantage by many landowners. Again, the provision of garages adjacent to a ROW is far from unusual in the Town; particularly in the case of relatively narrow lots and existing policy only confirms and advances past practice.

79 Again, it is clear from the evidence that the eastern half of the Ellesmere locality has only a small number of carports built in the front setback area, and there appears to be no overriding justification to put the relevant provisions of State and local policy to one side.

80 The position of the applicant is understandable but it would, nevertheless, be possible to locate a carport or garage adjacent to the rear ROW. Although this may not in fact occur, that decision is entirely the prerogative of the applicant.

81 On balance, the Tribunal supports the respondent in this matter and the application for review is dismissed.

82 For the foregoing reasons, the orders of the Tribunal are as follows:

I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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