Clarke and Shire Of Toodyay
[2009] WASAT 225
•10 NOVEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CLARKE and SHIRE OF TOODYAY [2009] WASAT 225
MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 10 NOVEMBER 2009
FILE NO/S: DR 52 of 2009
BETWEEN: BRIAN CHARLES CLARKE
Applicant
AND
SHIRE OF TOODYAY
Respondent
Catchwords:
Town planning Development application for an outbuilding prior to the completion of a dwelling Outbuildings policy Estate design guidelines Building envelope Visual amenity Precedent Floodplain Whether development approval was required Whether the proposed outbuilding should be approved prior to the dwelling reaching lockup stage Whether the proposal should be approved outside the designated building envelope Whether the proposal would establish an undesirable precedent
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.10, cl 6.10 P1
Shire of Toodyay Local Planning Policy No 13 - Outbuildings in Residential Areas
Shire of Toodyay Local Planning Policy No 18 - Glencoe Estate Design Guidelines
Shire of Toodyay Local Planning Scheme No 4, cl 8.1, cl 8.2, Pt 2, Pt 6, Pt 8
State Administrative Tribunal Act 2004 (WA), s 31(1)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms K Wood (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Toodyay
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported, Appeal No 13 of 1988, 21 October 1988)
Goldin & Anor v Minister for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a development application for an outbuilding submitted as part of an application for an outbuilding and a future dwelling at Lot 101 Campbell Chase, Dumbarton.
The issues were:
•whether the proposal required planning approval;
•whether the proposed outbuilding should be approved prior to the dwelling reaching lockup stage;
•whether the proposal should be approved outside the designated building envelope; and
•whether the proposal would establish an undesirable precedent.
The Tribunal determined that that the proposal was not exempt from the need for planning approval, because the proposal to build the outbuilding before completion of the dwelling required the Council to exercise discretion under its planning scheme.
The Tribunal found that there was no reasonable basis to approve the outbuilding prior to the construction of the dwelling, due to the negative impact on visual amenity associated with the risks of the outbuilding existing as a stand alone structure; the risk of a future dwelling being located to expose the outbuilding to the streetscape, and the risk of incompatible building materials between the proposed outbuilding and a future house.
The Tribunal found that there was no reasonable basis for building the outbuilding outside the building envelope, especially because there was room within the building envelope to move the outbuilding south, and that the encroachment outside the building envelope towards the north shifted the outbuilding towards the Avon River floodplain.
The Tribunal found that the two existing outbuildings located on sites within the estate without dwellings did not establish a precedent, because the existing outbuildings were approved under a different planning scheme when the sites were in a different zone and when the Shire of Toodyay Local Planning Policy No 13 - Outbuildings in Residential Areas did not apply to the sites. The Tribunal also found that approval of the proposed outbuilding would create an undesirable precedent because the proposal was objectionable and there was a possibility that there may be later undistinguishable applications.
It followed that the application for review should be dismissed, and the decision of the Council to refuse development approval of the outbuilding was affirmed.
Introduction
These proceedings involve an application brought by Mr Brian Clarke (applicant) pursuant to development s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Shire of Toodyay (Shire, Council or respondent) made on 3 July 2008 to refuse development approval for an outbuilding at Lot 101 Campbell Chase, Dumbarton (site).
The matter was referred to mediation. After mediation, a revised application including a dwelling was referred to Council pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) for reconsideration by the Council at its meeting on 21 May 2009. At that meeting, the Council conditionally approved the dwelling and refused the outbuilding.
Site and locality
The site has an approximate rectangular shape with a street frontage (south boundary) of approximately 143 metres to the Northam Toodyay Road and side boundary (east) of 82.3 metres, which includes a frontage of approximately 20 metres to Campbell Chase. The north boundary of approximately 142 metres adjoins the Avon River foreshore.
The site has an area of 1.02 hectares and includes a defined building envelope. The eastern edge of the building envelope runs parallel to the eastern boundary and is set back 20 metres from that boundary. The northern edge of the building envelope runs parallel to the northern boundary and is set back 20 metres from that boundary. The northern edge of the building envelope is close to the floodplain of the Avon River.
Both parties stated the building envelope was 500 square metres. The Tribunal believes the figure is incorrect as it represents only 5% of the site area. Visual examination of the proposed subdivision plan for the estate and the feature survey of the site indicate a larger building envelope. By scaling the feature survey drawing, the building envelope shown on that plan is at least 800 square metres.
The site is part of a group of 17 lots created in approximately 2005/2006 on a parcel of land between the Avon River and the Northam Toodyay Road. The lots are known as 'Glencoe Estate' and are covered by design guidelines adopted by the Council. There are no dwellings in the estate but there are two outbuildings which were approved under a previous town planning scheme.
Planning framework
The site is zoned Special Residential under the Shire of Toodyay Local Planning Scheme No 4 (LPS 4 or Scheme) which was gazetted on 28 February 2008. Under cl 8.2(b) of LPS 4, 'the erection of a single house including … ancillary outbuildings' does not require planning approval. However, various subclauses of cl 8.2(b) remove the exemption in some circumstances.
Part 2 of LPS 4 describes the provisions of the Scheme as they relate to local planning policies. If planning approval is required, there are two relevant local planning policies:
•Policy No 13 - Outbuildings in Residential Areas (Outbuildings Policy); and
•Policy No 18 - Glencoe Estate Design Guidelines (Design Guidelines).
Also relevant are the Residential Design Codes of Western Australia (2008) (R Codes).
Relevant sections of the planning framework are discussed in detail later in these reasons.
Proposed development
The proposed development is for an outbuilding. The original application (in 2008) described the proposal as an $18,000 shed. The drawings show a shed with dimensions of 9.5 metres by 10.5 metres. The shed is in the form of three attached bays. The central bay is 3.5 metres wide with a pitched roof to a maximum height of 4.42 metres. On both sides of the central bay are leanto structures ranging from 2.46 metres at the eaves to 3.7 metres where the leanto bays abut the central bay. The drawings show the proposed shed with an internal bathroom including a toilet.
The documents available to the Tribunal do not contain copies of the documents reconsidered by the Shire in May 2009. However, it is apparent from the documents that the reconsidered application included a dwelling. It is also clear from the applicant's submission and the respondent's reply to the submission that the applicant's revised application proposed the outbuilding be constructed when the dwelling reached floor level height.
It is also apparent from the site plan attached to the Shire's submission that part of the dwelling, part of the outbuilding and some of the waste disposal system are proposed to be outside the building envelope.
Council's decision
There are two relevant decisions. The first decision dated 3 July 2008 takes the form of a deemed refusal.
Please find enclosed your application which was submitted to the Shire of Toodyay on 18 June 2008. This application is being returned to you as it cannot be approved by the Shire at this time.
This letter explained various Scheme and policy requirements and referred specifically to a need for a dwelling prior to an outbuilding and problems with part of the proposal being located within the floodplain.
The revised application including a dwelling was determined by Council in May 2009, where Council resolved to conditionally approve the dwelling and resolved to refuse the outbuilding. The relevant resolutions were:
1.Council advise[s] the State Administrative Tribunal and the applicant that it reaffirms the decision to refuse the application for an outbuilding at Lot 101 Campbell Chase, for the following reasons:
a)The proposed development does not comply with Councils [sic] Policy TP.6 Outbuildings in Residential Areas and the provisions of the [R Codes] as the subject property does not have an existing dwelling.
b)The proposed development does not comply with the Councils [sic] Policy TP.12 Glencoe Estate Design Guidelines as it is positioned outside the designated building envelope.
c)The proposed development would detract from the amenity of the area.
d)The proposed development would establish an undesirable precedent.
2.Council advise[s] the State Administrative Tribunal and the applicant that the application for Planning Approval for the outbuilding can be approved once a dwelling is constructed to lockup-stage and the positioning of the outbuilding is amended so that it is located within the building envelope.
The issues
The following four issues arise for determination in this review:
1)whether the proposal requires planning approval;
2)whether the proposed outbuilding should be approved prior to the dwelling reaching lockup stage;
3)whether the proposal should be approved outside the designated building envelope; and
4)whether the proposal would establish an undesirable precedent.
The Tribunal will address each issue in turn.
Whether the proposal requires planning approval
It is clear from the applicant's submission that he has assumed that the respondent was correct when it required a planning application for the outbuilding and later for an outbuilding and dwelling. It is not clear whether he has received legal advice or whether he was aware that the matter of planning approval may be contentious. The Tribunal finds that this fundamental question of 'the need for planning approval' should be examined. If planning approval is not required, the remaining issues become irrelevant.
The respondent's position is defined in its submission dated 30 June 2009 where, at [6], it states:
Lot 101 is zoned 'Special Residential' under LPS 4 and by virtue of clause 8.2 of LPS 4 an outbuilding that is not ancillary to a single house is not permitted unless the Shire has exercised its discretion to grant planning approval.
Clause 8.2 is contained within Pt 8 of LPS 4 which deals with development of land. Clause 8.1 of LPS 4 requires that:
Subject to clause 8.2, all development of land zoned and reserved under the Scheme requires the prior approval of the local government.
The relevant parts of cl 8.2 of LPS 4 provide that:
Except as otherwise provided in the Scheme, for the purposes of the Scheme[,] the following development does not require the planning approval of local government
…
(b)the erection of a single house including any extension, ancillary outbuildings and swimming pools, except where
(i)the proposal requires the exercise of a discretion by the local government under the Scheme to vary the provisions of the [R Codes]; or
…
(iii)the development is a special control area as described under Part 6;
(iv)in the Rural Residential and Rural Living Zone, where the proposed development is not in accordance with the designated building envelope contained in an endorsed development plan.
…
Clause 8.2(b) of LPS 4 is clearly relevant, because it gives an exemption from planning approval to a single house including ancillary outbuildings. However, the exemption does not apply if one of cl 8.2(i) to cl 8.2(iv) of LPS 4 is applicable.
Clause 8.2(iv) of LPS 4 initially appears relevant, but is not applicable because, although it mentions 'building envelopes', it refers to different zones and does not apply to the Special Residential zone. This may be an error in the Scheme.
Clause 8.2(iii) of LPS 4 may not apply, because a special control area in the Scheme is distinct from the Special Residential zone. Nevertheless, one of the special control areas described in Pt 6 of LPS 4 is the Avon River Valley Special Control Area. No evidence was submitted to indicate whether or not the site is located within a special control area such as the Avon Valley. If the site is located in such an area, planning approval is required because the exemption provided by cl 8.2(b) is removed by cl 8.2(b)(iii) of LPS 4.
From the respondent's submission, it appears that the Shire believes planning approval is required via cl 8.2(b)(i) of LPS 4. The Shire contends that the 'proposal requires the exercise of a discretion by the local government under the Scheme to vary the provisions of the [R Codes]' and also because the outbuilding is not ancillary to the dwelling, since it is proposed to exist before the dwelling is completed.
The respondent's argument was presented in their submission to the Tribunal.
In accordance with the provisions of the [R Codes], outbuildings are 'incidental development' as identified under Clause 6.10. 'Incidental Development' is defined [in the R Codes] as, 'development which is associated with or attached to a dwelling and incidental to its main residential functions'. The objective of clause 6.10 is relevantly '[t]o ensure that outbuildings…do not detract from the streetscape, or the amenity of the development or that of adjoining residents; and (b) adequate provision is made for incidental facilities serving residents' needs.
In summary, the Shire's argument is that an outbuilding is incidental to a residence, and if there is no residence, it cannot be incidental and is a separate structure. The Shire also argued that the proposal would have an adverse impact on the amenity of the locality.
The proposal needs to be assessed under the performance criteria where, at cl 6.10 P1 of the R Codes, the applicable criterion is for 'outbuildings that do not detract from the streetscape of the visual amenity of residents or neighbouring properties'.
Without discussing the merits of the proposal, the Tribunal agrees that the Shire is required to make a decision to vary the R Codes and exercise discretion on both the use (whether it is incidental if the dwelling is not reasonably complete) and the performance criterion dealing with amenity.
The Tribunal finds that planning approval is required for the outbuilding. Had the Tribunal found planning approval was not required under cl 8.2(b)(i) of LPS 4, then the Tribunal would have required submissions from the parties on cl 8.2(b)(iii) of LPS 4, where it is clear that planning approval is required if the site is within a special control area.
Whether the proposed outbuilding should be approved prior to the dwelling reaching lockup stage
The applicant's submission presented an issue for determination which was based on the reasons for refusal noncompliance with the Council's Outbuildings Policy as the site does not have an existing dwelling. The respondent agreed with this issue; however, the Shire's correspondence stated that the proposal is capable of approval once the dwelling has reached lockup stage. The issue expressed by the parties refers to a completed dwelling as the threshold for approval of an outbuilding. In view of the respondent's stated position, the Tribunal has determined it is more appropriate to deal with the lower threshold of a partially completed dwelling.
The applicant's argument is that the outbuilding is necessary prior to completion of the dwelling because the outbuilding will provide secure storage for building materials and construction equipment. The applicant further argued that the alternative is sea containers and other temporary sheds to facilitate the necessary storage.
It is the applicant's contention that the outbuilding will provide a better visual amenity outcome. Rather than an assortment of ugly sheds and/or containers during construction, the outbuilding will be a typical rural outbuilding which will contain all the materials and equipment. Furthermore, the outbuilding will gradually disappear from the Campbell Chase streetscape view as construction of the house progresses.
Finally, the applicant observes that as there are no current residents living in the estate, the outbuilding cannot cause aesthetic offence.
The respondent's argument is based around cl 6.10 of the R Codes and its Outbuildings Policy. Relevant clauses of the Outbuildings Policy are:
9The construction of an outbuilding on a Residential property that does not have an existing dwelling will not be supported.
10All outbuildings must be located behind the existing dwelling on a property.
12The wall and roofing materials used in an outbuilding should match or complement the existing dwelling on the property.
The respondent argued:
The application for the outbuilding is inconsistent with the intent of [cl 6.10 of the R Codes]. The intent of clause 6.10 of the [R Codes] is to permit outbuildings as incidental facilities to serve the needs of residents but not in a way that detracts from the streetscape or the amenity of the development or adjoining residents. In the absence of a dwelling, the outbuilding will be the dominate [sic] built feature on the subject site and, because the [R] Codes recognise that there is a case for 'relaxed standards' for the design of outbuildings, the dominant built feature will not meet the minimum design standards equivalent to a dwelling. This will detract from the amenity and streetscape of the locality.
The respondent further argued that there would need to be particular reasons associated with the locality or the proposed outbuilding that would justify a departure from the general prohibition of outbuildings without associated dwellings.
The requirements of orderly and proper planning dictate that such a departure could only be supported in circumstances where it can be established that in the context of the particular outbuilding, or the particular location, the outbuilding will not have [a] detrimental impact … There is nothing about the proposed outbuilding or the location … that would justify reaching such a conclusion in this case. If permitted, the proposed outbuilding will be, as the sole building on the residential lot, a visible and substandard building that is out of context with its surrounds and there is no guarantee that a subsequent dwelling will be constructed on the lot.
It is the respondent's concern that:
If the respondent permits the construction of an outbuilding that is not ancillary to a dwelling, it is not inconceivable, whatever the applicant's current plans may be, that the position will change and the site will remain with only the outbuilding for a considerable period of time.
The Tribunal agrees with the respondent's arguments. There are obvious visual amenity risks associated with approving the construction of an outbuilding prior to a dwelling. Apart from the risk of an outbuilding remaining on the site for a substantial period of time without a dwelling, there is the risk that a future dwelling may be located in such a position that the outbuilding is not behind the dwelling and also the risk of incompatible materials (cl 10 and cl 12 of the Outbuildings Policy).
The Tribunal acknowledges the applicant's argument that temporary structures used to securely store materials and equipment during construction may be untidy and/or unsightly. However, the impact on visual amenity is temporary, and is consistent with visual expectation of a construction site.
The applicant's proposal to commence construction of the outbuilding once the dwelling reaches floor level does not overcome the risks associated with approving the outbuilding before the dwelling reaches lockup stage. It is not entirely clear how much construction will be completed to reach floor level. It could mean footings and some inground services. The extent of construction will not be sufficiently advanced to overcome the respondent's reasonable concerns, including: no necessary commitment to completing the dwelling; the possibility of amending the plans (exposing the outbuilding to the streetscape); and no certainty concerning compatibility of materials.
The Tribunal finds there are no reasonable planning grounds to approve the proposed outbuilding prior to the dwelling reaching lock-up stage.
Whether the proposal should be approved outside the designated building envelope
The applicant argues that the building envelope is not defined by dimensions on the feature survey of the site. Nevertheless, using available information, the proposed outbuilding at the north-west corner of the envelope 'will sit at most 3 metres out of the building envelope'.
The applicant notes the practical difficulties of dealing with a building envelope that is only 500 square metres on a 1 hectare site.
The dwelling alone occupies some 220 [square metres] of the building envelope leaving very little area given the topography within the building envelope for the placement of the outbuilding.
The applicant argues that the minor variation to the building envelope will not impact on aesthetic amenity and that discretion exists to support minor changes such as those proposed.
The respondent's position is clearly understood from its submission:
The Shire of Toodyay Policy TP. 12 Glencoe Estate Design Guidelines [an earlier version of the Design Guidelines] section 2 states 'All buildings, including outbuildings, within the policy area shall be located within the building envelopes nominated on the Subdivision Guide Plan'. These building envelopes were nominated when the policy was adopted in January 2006 as a means to ensure that buildings developed in this estate were positioned taking into account the flooding of the Avon River and to create an open streetscape within this estate.
In the documents submitted to the Tribunal, there is no evidence of a variation to the original building envelope. However, Attachment 1 to the applicant's submission appears to show a modified building envelope. In this modified envelope, the applicant is correct in the statement that the variation is minor and restricted to the northwest corner. However, Attachment 1 shows the original building envelope in a dotted line and shows both the dwelling and outbuilding being outside the envelope on the north side and part of the west.
The best approach would be for the applicant to seek a variation to the shape and location of the building envelope and to explain why a variation is required for both the dwelling and the outbuilding. The difficulty with the current information is that the modification shifts the envelope north towards the Avon River and the floodplain. The respondent’s submission states the northern edge of the building envelope adjoined the floodplain. However, current information submitted to the Tribunal by the parties suggests the floodplain (100 year flood level) is at least 5 metres north of the building envelope. Furthermore, as noted earlier, it is possible that the building envelope is at least 300 square metres larger than the area stated by the parties. Until these uncertainties are resolved, it would be premature to consider adjusting the building envelope.
The original application showed the septic tanks and leach drains outside the building envelope on the north side (floodplain side). The modified proposal shows the leach drains outside the building envelope on the west side. It is not clear from the evidence whether this involves any encroachment into the floodplain.
Also, it should be noted that cl 3 of the design guidelines, under the heading 'Setbacks and Building Envelopes', states:
No buildings or structures may be constructed within 50 metres of the Northam Toodyay Road or the Avon River Foreshore Reserve. This setback shall be measured from the outer boundaries of the road and foreshore reserves.
It is possible that the proposal may not comply with that requirement. This uncertainty is noted and does not form part of the Tribunal's reasons for the decision.
Although there is some uncertainty associated with the building envelope, one element is clear; examination of Attachment 1 to the applicant's submission shows there is sufficient space to move the outbuilding towards the southern side of the building envelope.
In conclusion, the Tribunal finds that the applicant has not submitted sufficient information to justify building outside the defined building envelope, especially since the variation involves moving the building towards the floodplain.
Whether the proposal would establish an undesirable precedent
There are two aspects to the issue of precedence. First, the applicant argues there are existing outbuildings which set a precedent for the proposed outbuilding and second, the respondent argues approval of the proposed outbuilding would create an undesirable precedent.
The applicant argued that precedent has been established by the erection of two outbuildings within the estate which exist on lots where there are no dwellings. However, the respondent argued that the '[t]wo outbuildings currently erected within this locality were approved when the provisions of Town planning Scheme No. 1 were operative and the Respondent's policy TP.6 Outbuildings in Residential Areas did not apply as the area did not have a residential zoning'.
The respondent further argued that approval of the proposed outbuilding would create an undesirable precedent, because it is reasonable to contemplate similar application in this estate if this outbuilding is approved.
Precedent was considered by the Tribunal, in an analysis of authorities, including Aspen Pty Ltd v State Planning Commission (unreported, Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, in Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 at [71] [75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
In this instance, for reasons discussed earlier, the proposal is objectionable. Furthermore, the Tribunal agrees with the respondent that there is more than a mere chance that there may be later indistinguishable applications. It is easy to contemplate that, later, similar applications will be made by other applicants to build outbuildings on similar sites prior to the construction of a residence, or to build outside the building envelope.
With reference to the two existing outbuildings, the Tribunal finds that they were approved under a different planning framework and their approval has no relevance to the current proposal.
Conclusion
The Tribunal has determined that the proposal is not exempt from the need for planning approval because the proposal to build the outbuilding before the dwelling requires the Council to exercise discretion under its planning scheme.
The Tribunal found that there was no reasonable basis to approve the outbuilding prior to the construction of the dwelling, due to the negative impact on visual amenity associated with the risks of the outbuilding existing as a stand alone structure; the risk of a future dwelling being located to expose the outbuilding to the streetscape, and the risk of incompatible building materials between the proposed outbuilding and a future house.
The Tribunal found that there was no reasonable basis to building the outbuilding outside the building envelope, especially because there was room within the building envelope to move the outbuilding south, and that the encroachment outside the building envelope shifts the outbuilding towards the Avon River floodplain.
The Tribunal found that the two existing outbuildings located on sites within the estate without dwellings did not establish a precedent, because the existing outbuildings were approved under a different planning scheme when the sites were in a different zone and when the Outbuildings Policy did not apply to the sites. The Tribunal also found that approval of the proposed outbuilding would create an undesirable precedent, because the proposal was objectionable and there was a possibility that there may be later undistinguishable applications.
It follows that the application for review should be dismissed and the decision of the Council to refuse development approval of the outbuilding should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 21 May 2009 to refuse development approval for an outbuilding at Lot 101 Campbell Chase, Dumbarton is affirmed.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER
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