Barralet and Anor and Shire of Murray
[2005] WASAT 183
•26 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: BARRALET & ANOR and SHIRE OF MURRAY [2005] WASAT 183
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 26 JULY 2005
FILE NO/S: RD 432 of 2005
BETWEEN: ROY DUNCAN BARRALET
LOUANNE ROCHELLE MASON
ApplicantsAND
SHIRE OF MURRAY
Respondent
Catchwords:
Development - Refusal - Shed - Canal frontage lot - Residential Design Codes - Surveillance of the street - Streetscape
Legislation:
Town Planning and Development Act 1928 (WA)
Residential Design Codes of Western Australia, design element 3.2.4
State Administrative Tribunal Act 2004 (WA), s 29(5)(b), s 82(1)
Result:
Application for review allowed
Category: B
Representation:
Counsel:
Applicants: Selfrepresented
Respondent: Selfrepresented
Solicitors:
Applicants: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicants, Roy Duncan Barralet and Louanne Rochelle Mason, sought review of the Shire of Murray's refusal to grant planning consent for the development of a shed in the set back between their house and the street.
The Shire resolved that the shed would not meet the development criteria of Design Element 3.2.4 of the Residential Design Codes. Design Element 3 is concerned with development maintaining an attractive streetscape and subclause 3.2.4 more particularly with the provision of surveillance between the house and the street.
The applicants' house is on a lot that has one frontage to a canal and another to the street. The Shire's Town Planning Scheme No 4 includes provisions directly aimed at restricting the development of any structures between the canal and the house.
The applicants produced photographs illustrating that in this street the street set back of other houses is used for the parking of boats, caravans and vehicles and for storage.
The proposed shed would be consistent with the streetscape and would still enable some surveillance of the street.
The application has been allowed.
Introduction
This is an application by Roy Duncan Barralet and Louanne Rochelle Mason ("applicants") against the refusal by the Shire of Murray ("respondent") to grant planning approval for the development of a shed in the road frontage set back of the house at lot 97 (number 75) Moyup Way, South Yunderup ("subject land").
The subject land is a canal block and as such is described by the applicants as having in effect two front yards. One end of the property is bounded by a waterway while the other end is on the access road, Moyup Way.
The respondent's decision
The applicants applied to the respondent for planning approval to develop a carport and a shed on the Moyup Way frontage of the subject land. The respondent approved the carport but refused the shed for the reason:
"The proposal does not meet the development criteria of Design Element 3.2.4 of the Residential Design Codes of Western Australia."
Planning control
Shire of Murray Town Planning Scheme Number 4 – District Zoning Scheme ("TPS 4") requires at cl 6.2.7 that no person shall carry out any development within the Canal Development zone without first applying for and obtaining planning approval. Clause 6.2.10 states:
"All buildings shall be not less than 9 metres from a canal frontage …"
At cl 7.2.4 TPS 4 states that within those areas zoned "Canal Development" minimum set back distances shall comply with the provisions of cl 6.2.10. Exceptions to the set back from the canal are open deck structures and structures with shade cloth covering.
Clause 6.2.17 requires:
"All clothes drying areas, utility areas or service areas, which in the opinion of the council will detract from the amenity of either the canal frontage or the road frontage shall be screened from view to the satisfaction of the council. Applications to commence development shall show how all clothes drying areas, utility areas or service areas will be integrated with the development in order to comply with this subclause."
The Residential Design Codes of Western Australia ("Design Codes") are incorporated into TPS 4 at cl 7.2.1(3) where it states that "the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform for the provisions of those codes".
Part 3 Element 2 of the Design Codes is titled "Streetscape". Under Streetscape Requirements the objective is:
"To contribute towards attractive streetscapes and security for occupants and passers-by, ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings."
Clause 3.2.4 of the Design Codes is Surveillance of the Street and states:
"Performance Criteria
P4Buildings designed to provide for surveillance between dwellings and the street.
Acceptable Development
A4.At least one habitable room window of the dwelling has a clear view of the street and the approach to the dwelling."
Applicants' position
The applicants' submission in support of allowing the development of the shed can be summarised as follows:
•1.2 metres of window with a view to the street would still be available.
•The canal area of the lot is of limited size and shape with limited equipment storage areas.
•There are many residences in the street with structures and/or with a house design contrary to the design rules the respondent claims this refusal to be subject to. Many of the houses have no view of the street or approaches.
•No objections have been received from the next door neighbours.
•The subject land does not have a backyard but in effect has two front yards. The canal frontage has restrictions as to appearance and outbuildings.
•Residents need parking and storage areas somewhere on the property and so if the appearance of the canals is important then there must be some latitude in regard to streetscape.
The applicants provided a series of photographs of houses in Moyup Way to illustrate the point that there is located at the street frontage of a number of houses garages, sheds, and 1800 high brick fences that are inconsistent with cl 3.2.4 of the Design Codes.
Respondent's position
The respondent's submission is simply that the location of the shed would be such that the proposal would not meet the development criteria of cl 3.2.4 of the Design Codes.
Comment
The sketch provided does not include a north point. When viewed from Moyup Way there is at the left of the house an existing garage in front of which is to be erected the approved carport with a set back of 3.0 metres from the road boundary. At the right side of the house the set back from the side boundary is shown as 4.0 metres. The proposed shed is 3.0 metres wide by 5.0 metres deep and would be situated in the front set back 1.0 metre from the side boundary, 3.0 metres form the road frontage and 1.0 metre from the building line of the house.
To confuse matters, the applicants also provided a photograph on which is superimposed an outline of a shed. In the photograph, the side boundary set back to the house would appear to be little more than 1 metre and the shed is shown as extending across the front of the house and in particular across most of the front of a floor to ceiling window. The representation on the photograph appears to be more accurate than the sketch. The photograph shows what would appear to be about a metre of the window still visible from the street.
Not withstanding the poor nature of the sketches accepted by the respondent and submitted with this application, it is apparent that this shed would leave about a metre of window of the front room from which access to the dwelling could be viewed. From the photographs of other houses in Moyup Way provided by the applicants, a section of window this wide to provide for surveillance would be generous by comparison with at least seven other dwellings where there would appear to be no possible surveillance from the dwelling.
It is also apparent from the information provided that for a canal lot in this locality, the utility areas of a dwelling are located mainly at the street frontage and are used for the parking of vehicles, boats and caravans and for storage.
The applicants in their submission have offered to provide trellising and landscaping between the shed and the front boundary and this would appear to provide an opportunity to maintain the appearance of the streetscape.
From my examination of the submissions, I have concluded that there is in the particular circumstances of this canal frontage block a case for allowing a shed of the size proposed to be located in the road front set back as requested by the applicants. The shed proposed is consistent with the streetscape illustrated in the photographs provided and is consistent with maintaining surveillance of the approach to the dwelling.
Orders
The orders of the Tribunal therefore, are as follows:
1.the application for review is allowed;
2.the proposed development of the shed is approved subject to any such reasonable conditions to be imposed either as a result of agreement by the parties, or by determination of the Tribunal, in accordance with order 6;
3.the respondent is to file with the Tribunal and serve on the applicants a draft list of conditions it wishes to impose by 1 August 2005;
4.the applicants are to file with the Tribunal and serve on the respondent a statement identifying any of the draft conditions which they object to, stating the reasons for each objection by 8 August 2005.
5.pursuant to s 29(5)(b) and s 82(1) of the State Administrative Tribunal Act 2004 (WA), orders 1 and 2 do not come into effect until such time as the conditions referred to in order 2 are finalised, at which time the Tribunal will provide a consolidated order setting out all the conditions of approval;
6.unless the parties file a minute of consent orders setting out the conditions to be imposed prior to 8 August 2005 the Tribunal will proceed to determine the conditions to be imposed on the basis of the submissions received from each party.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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