AVERY and CITY OF SWAN
[2009] WASAT 175
•10 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AVERY and CITY OF SWAN [2009] WASAT 175
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
VIEWING HELD ON 25 AUGUST 2009
DELIVERED : 10 SEPTEMBER 2009
FILE NO/S: DR 240 of 2009
BETWEEN: EARNEST GEORGE AVERY
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development - Existing approval for a shed - Application to extend approved shed - Impacts of extension on adjoining property - Adverse visual impacts to adjoining residence and outdoor paved area - Overshadowing of outdoor area - Deprivation of access to sea breezes - Rural Zones - Building and Development Standards Policy - Setback requirements
Legislation:
City of Swan Local Planning Scheme No 17, Sch 5
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2008), cl 6.9
Swan Valley Planning Act 1995 (WA)
Result:
The application for review is allowed and approval for the extension to the approved shed at No 4 (Lot 91) Victoria Street, West Swan is granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr SE O'Hara
Respondent: Mr P Russell
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In 2008, the City of Swan granted planning consent to Mr Earnest George Avery for the construction of a shed on his property at No 4 (Lot 91) Victoria Street, West Swan. Subsequent to that approval, Mr Avery applied to the City of Swan to extend the approved shed. When this application was refused by the City of Swan, Mr Avery applied to the Tribunal for a review of that decision.
The issues in this matter related to the potential impacts of the proposed development on the amenity of the adjoining property at No 29 (Lot 92) Tomlin Street and, more specifically, whether the proposed development would:
•Generate adverse visual impacts to this residence and adjoining outdoor paved area;
•Overshadow the outdoor area; and
•Cause the deprivation of access to sea breezes.
In the context of the currently approved shed, the Tribunal found that a requirement for the proposed addition to comply with the required setback would not appreciably reduce the impact of the overall structure on the sense of enclosure in the external living areas of the adjoining property, and that in this context it would be acceptable to relax the setback requirement of the proposed extension.
In regard to overshadowing, the Tribunal found that the likely additional impacts of the proposed extension to the existing approved shed were insignificant.
In regard to the issue of sea breezes, the Tribunal found that the impacts of the proposed extension on access to sea breezes were likely to be, given existing structures and approvals, marginal.
For these reasons, the application for review was allowed and approval for the extension to the approved shed at No 4 (Lot 91) Victoria Street, West Swan was granted, subject to conditions.
Background
On 7 April 2008, the City of Swan (City, Council or respondent) granted planning consent to Mr Earnest George Avery (applicant) for the construction of a 9 metre by 19 metre shed on his property at No 4 (Lot 91) Victoria Street, West Swan.
Subsequent to that approval, Mr Avery applied to the City to extend the approved shed by 5 metres to an overall length of 24 metres. This application was refused by the City on 20 May 2009 and Mr Avery applied to the Tribunal for a review of that decision.
Locality and subject land
The subject land is located at No 4 (Lot 91) Victoria Street, West Swan and is zoned 'Swan Valley Rural' under the City of Swan Local Planning Scheme No 17 (LPS 17). The area of the lot is 3,948 square metres.
The lot has a frontage of approximately 40 metres to Victoria Road and the existing residence on the property is located reasonably central on the lot and set back approximately 9 metres from the front boundary. At the rear of the residence is an area of lawn approximately 20 metres in depth. To the west of the rear section of the lawn is an existing shed of 84 square metres in area accessed along a gravel driveway adjacent to the western boundary. This shed is located approximately 3.5 metres off the western boundary providing vehicular access to the rear section of the property.
The central area of the lot is occupied by a number of birdcages, of which two birdcages and a chicken pen are located close to the eastern boundary.
The adjacent property to the east at No 29 (Lot 92) Tomlin Street has its primary frontage to Tomlin Street, which runs north/south adjacent to the eastern boundary of that lot. This lot has an existing cottage set back approximately 10.5 metres from the southern boundary although it faces Tomlin Street. To the rear, and west, of this structure is a carport. At the northern end of the lot is the main residence which is set back approximately 12 metres from Tomlin Street and has carports located both to the north and south of the dwelling. In the central part of the lot, between the cottage and the main residence, are two sheds located close to the western boundary. The northern shed is approximately 9 metres by 8 metres while the southern shed, separated by approximately 4.5 metres from the northern shed, is approximately 10 metres by 20 metres.
Importantly, the main residence is set back approximately 15 metres from the western boundary. However, the residence has a verandah along the full length of the western side which is utilised as an external living area. The western edge of the verandah is approximately 11 metres from the common boundary with the subject land. This verandah is screened by extensive vegetation on its western edge with the exception of the central stairs which provide access to a raised paved area between the verandah and a narrow landscaped area adjacent to the western boundary, both at natural ground level. The raised platform is approximately 650 millimetres above natural ground level.
The proposed development
The proposed development involves an application to extend an approved, and partly constructed, shed of 19 metres in length by a further 5 metres.
The approved shed is located in the north‑eastern corner of the subject land, north of the existing birdcages and chicken pen, and is set back 1.2 metres from the eastern boundary and 13.5 metres from the northern boundary.
The shed is to be constructed with steel columns and trusses generally spaced at 4 metre centres, and covered with power coated metal sheeting. It will have a concrete floor slab. The slight slope towards the east will require a retaining wall of approximately 300 millimetres to 400 millimetres along the eastern boundary. Three roller doors located on the western elevation provide access to the shed.
The height to the eaves on the western side is indicated at 4.0 metres on the drawing included with the application, while the ridge is some 600 millimetres higher.
The extension, the subject of this review, will be to the north of the existing approved shed. This will reduce the setback to the northern boundary to 8.5 metres.
Decision of the City of Swan
In dealing with the application for the proposed extension to the northern end of the approved shed, the Council, at its meeting of the 20 May 2009, resolved to refuse the application for the following reasons:
(a)By virtue of its extended length and height coupled with its setback from the common side boundary with adjoining Lot 92 the shed is considered to have an adverse impact on the amenity of that lot having regard to the proximity and siting of the residence upon it;
(b)The proposal is therefore considered inconsistent with Objective 10 relating to Area B of the Swan Valley Planning Act which stipulates:
The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area
Prior to this decision, the application had been referred to the Swan Valley Planning Committee which, at its meeting of 20 April 2009, resolved not to support the application, finding it inconsistent with the objectives of the Swan Valley Planning Act 1995 (WA).
Relevant planning provisions
Schedule 5 of LPS 17 'Exempted Development' sets out the provisions for exempted development in regard to rural sheds. In the Swan Valley Rural Zone these are as follows:
•The combined area of sheds (and other outbuildings) on the land would not exceed 300 sq metres;
•The height does not exceed 5 metres;
•External surfaces are clad with non-reflective materials;
•The shed or other building is set back from the boundaries in accordance with the standard setback specified for that zone. Where no setback is specified in this table it shall be exempt if it meets the required setbacks for a General Rural Zone;
•Is not located within a Flood Prone Area; [and]
•Is not located in a Heritage Area and is not located on a lot that contains a place on the Heritage List.
The Site Requirements set out in Table 1 of the City of Swan Town Planning Policy 126 'Rural Zones - Building and Development Standards' sets out minimum setbacks for General Rural zones. This table requires a minimum side setback of 20 metres and a minimum rear setback of 30 metres. However, the table also notes that where a lot is less than 1 hectare in area, the minimum setbacks shall be in accordance with the requirements of the Residential Design Codes of Western Australia (2008) (Codes) applicable for the particular size lot.
With an area of 3,948 square metres, the lot would fall within an R5 coding under the Codes. This requires that 'other' setbacks are calculated according to Table 2a and 2b and Design Element 6.3.
It was agreed by the parties that the eastern setback did not comply with the relevant provisions.
Issues for determination
The respondent submitted that the nature of the adverse impacts on the amenity of the adjoining property at No 29 Tomlin Street related to the likely effects of the height, bulk, scale, orientation and appearance of the proposed shed. More specifically, these comprised whether the proposed development would:
•Generate adverse visual impacts to the residence and adjoining outdoor paved area;
•Overshadow the outdoor area; and
•Cause the deprivation of access to sea breezes.
The Tribunal shall deal with each of these matters in turn.
Adverse impacts to residence and adjoining outdoor paved area of adjoining property
In the witness statement provided by Mr and Mrs Paternostro, the owners of the adjoining property at No 29 Tomlin Street, they argue the existing shed will enclose their outdoor area and dominate their outlook from their rear verandah and paved outdoor area, and that the proposed extension will worsen the situation.
Mr O'Hara, for the applicant, argues that the extended shed complies with LPS 17 in every respect, except in regard to the side setback where it is impossible to do so. Mr O'Hara also submits that the visual impact of the shed would be alleviated by a vegetation screen between the proposed shed and the eastern boundary of the lot.
Relative to the preexisting situation, the approved shed will undoubtedly create a perception of enclosure within the outdoor area of the adjoining property. This will be mediated to some degree by the fact that the verandah area, which appears to be the most actively used outdoor area on the adjoining property, is heavily screened by planting on its western edge. The proposed extension will increase the perception of enclosure somewhat. The main impact will be on the view to the west from the verandah in the area of the stairs where the verandah is not screened with vegetation.
Table 1 of the City of Swan Town Planning Policy 126 'Rural Zones Building and Development Standards' requires that where a lot is less than 1 hectare in area, the minimum setbacks shall be in accordance with the requirements of the Codes applicable for the particular size lot.
Applying the relevant setbacks of Table 2, the Codes indicate that the minimum setback for a building of 4.5 metres high and 25 metres long (the total length of the approved shed and the proposed extension) is 1.8 metres. The approved shed and the proposed addition to the shed are set back 1.2 metres from the boundary. Thus an approval for the extension would require a relaxation of 0.6 metres.
In the context of the current approval, a requirement for the proposed addition to comply with the 1.8 metre setback requirement would not appreciably reduce the impact of the overall structure on the sense of enclosure on the external living areas of the adjoining property.
In this context, given the marginal additional impacts of the proposed extension, and for the reasons set out below, the Tribunal found that it would be acceptable to relax the setback requirement of the proposed extension of the shed to 1.2 metres.
Overshadowing of the outdoor area of adjoining property
It is clear that the proposed shed will impact on the level of solar access to the adjoining property. This impact is, however, mitigated to some degree by two relevant factors. As the lots are orientated north/south, any impacts will be limited to the afternoon period. In addition, the fact that the rear paved area to the east of the proposed shed is raised will diminish the impacts to some degree. More importantly, the additional impact of the proposed extension is minimal, given the impact of the existing approved shed.
While technically the development of a shed on land zoned 'Swan Valley Rural' falls outside the purview of cl 6.9 of the Codes, this clause does provide some guidance on the matter in terms of potential impacts on an adjoining property. In this regard, should these provisions be applied to the proposed extension, and in fact the whole of the proposed shed, would comply with the acceptable development criteria of this clause.
Given the minimal additional impacts of the proposed extension relative to the existing approved shed, the Tribunal finds that such impacts are insignificant.
Deprivation of access to sea breezes of the adjoining property
In the witness statement provided by Mr and Mrs Paternostro, they submit that:
The proposed extension will worsen the situation, by closing off almost the full length of our outdoor area. It's [sic] proposed length and height coupled with its setback will block off prevailing winds from the west particularly summer sea breezes.
Generally sea breezes, if they are strong enough to reach this locality, come from the south-west. This being the case, access to sea breezes for the residence on the adjoining property is already severely compromised by existing structures on both sides of the common boundary. These include birdcages at No 4 Victoria Road and the existing sheds on the adjoining property.
In addition, the approved shed will exacerbate the situation by establishing an almost continuous line of structures on one side of the boundary or the other. In this context, and given its location at the northern end of the approved shed, the additional impact of the proposed extension will be marginal. For this reason, the Tribunal finds that the impacts of the proposed extension on access to sea breezes are likely to be, given existing structures and approvals, inconsequential.
Conditions
The respondent submitted a 'Without Prejudice' set of all of the conditions which it contended should be imposed should the Tribunal consider that approval of the application, subject to conditions, was appropriate. In response, the applicant objected to condition (ii) which read:
(ii)The shed is to be constructed of colourbond [sic] in a colour to the satisfaction of the City of Swan.
The applicant submits that this condition should be amended to read:
(ii)The shed is to be constructed of a powder coated metal in an olive green (walls) and cream (roof) colour, to the satisfaction of the City of Swan.
The reason for the objection was that the applicant has already bought powder-coated Brownbuilt sheeting in these colours following the original approval for the shed.
Clause 2.9 of the City of Swan Town Planning Policy 126 'Rural Zones Building and Development Standards' sets out development conditions applicable to the Swan Valley Rural Zone. The Council, and the Tribunal upon review, is to have regard to the following development control principle:
a)all structures shall be designed having regard to suitable materials and colours to accord with the rural character of the locality;
In this regard, the proposed materials and colours comply, in the Tribunal's view, with this principle and it would be appropriate to amend the condition. In addition, given the specific nature of the condition, no further approval from the City should be required.
Conclusion
The development, the subject of review, involves an application to extend an approved, and partly constructed, shed at No 4 (Lot 91) Victoria Street, West Swan.
The substantive issue in this matter is whether the impacts of the relaxation of the side setback on the adjoining property to the east are such that such a relaxation should not be entertained.
In dealing with the matter, the Tribunal did not support the respondent's contention, for the purposes of establishing the side setback, that an R2.5 coding should be applied to the subject land. The lot is 3,948 square metres in area and Table 1 of the General Site Requirements states that a minimum site area of 4,000 square metres is required for an R2.5 coding. For this reason, the Tribunal applied an R5 coding.
In addition, the Tribunal is of the view that the City's second reason for refusal cannot be substantiated. The proposed extension does not involve overstocking, cause degradation of the environment, or compromise management practices detrimental to the amenity of the area.
Importantly, the substantive impacts to the adjoining property arise from the approval already granted by the respondent, and any additional impacts associated with the extension to the shed are marginal.
In this context the Tribunal found for the applicant.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent on 20 May 2009, to refuse development approval for the extension to an approved shed at No 4 (Lot 91) Victoria Street, West Swan is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(i)Applicant to provide and maintain landscaping between the shed and adjoining property line. Plant species to be shrubs that must be placed along the entire length of the shed.
(ii)The shed is to be constructed of powder coated metal with olive green walls and a cream roof colour.
(iii)The shed is to be used for domestic/rural purposes only and must not be used for habitation.
(iv)All stormwater produced on the site shall be disposed of on the site to the satisfaction of the City of Swan.
(v)Earthworks, footings and/or structures are not to extend over any lot boundaries.
(vi)Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require the further approval of the City of Swan.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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