DAMAVE and SHIRE OF DANDARAGAN
[2008] WASAT 257
•3 NOVEMBER 2008
DAMAVE and SHIRE OF DANDARAGAN [2008] WASAT 257
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 257 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:288/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 2/11/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed and the decision of the respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | BILL DAMAVE KARLA DAMAVE SHIRE OF DANDARAGAN |
Catchwords: | Town planning Development Construction of a shed Local planning policy Exercise of discretion Weight to be given to the current policy Why the policy should not be applied |
Legislation: | Residential Design Codes of Western Australia (2008), cl 6.10.1 Shire of Dandaragan Local Planning Scheme No 7 (WA), cl 1.6, cl 2.2, cl 2.3, cl 5.3, cl 5.14, cl 10.2 Shire of Dandaragan Local Planning Scheme No 6, cl 6.11, cl 6.11.2 |
Case References: | Adbooth Pty Ltd and City of Perth [2007] WASAT 76 Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 |
Orders | For the above reasons, the Tribunal makes the following orders:,1. The application for review is dismissed. ,2. The decision of the respondent is affirmed. |
Summary | In July 2008, Mr Bill Damave and Mrs Karla Damave applied to the Shire of Dandaragan for approval to erect a storage shed on Lot 230 Zendora Road, Alta Mare, Jurien Bay.,The application was refused by the Shire because it did not comply with the respondent's current policy on the scale of outbuildings, and Damaves applied to the Tribunal for a review of that decision.,The issue was whether on the merits of the case discretion should be exercised by the Tribunal to allow the application. In weighing this issue the questions were the weight to be given to the current policy, and whether there were relevant grounds in this case to depart from the policy.,The Tribunal found that the policy is based on sound planning principles, has been the subject of ongoing review and debate over an extended period of time, and has, in its current form, been in operation for over two years. It should therefore be given due weight in the current review.,However, the Tribunal found that the desire of an applicant to have more extensive outbuildings than permitted by the policy did not in this case constitute either an exceptional circumstance or establish a cogent reason why the planning principles that find expression in the policy should not be applied.,For these reasons the application for review was dismissed and the decision of the respondent affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DAMAVE and SHIRE OF DANDARAGAN [2008] WASAT 257 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 3 NOVEMBER 2008 FILE NO/S : DR 288 of 2008 BETWEEN : BILL DAMAVE
- KARLA DAMAVE
Applicants
AND
SHIRE OF DANDARAGAN
Respondent
Catchwords:
Town planning - Development - Construction of a shed - Local planning policy - Exercise of discretion - Weight to be given to the current policy - Why the policy should not be applied
Legislation:
Residential Design Codes of Western Australia (2008), cl 6.10.1
Shire of Dandaragan Local Planning Scheme No 7 (WA), cl 1.6, cl 2.2, cl 2.3, cl 5.3, cl 5.14, cl 10.2
(Page 2)
Shire of Dandaragan Local Planning Scheme No 6, cl 6.11, cl 6.11.2
Result:
The application for review is dismissed and the decision of the respondent affirmed
Category: B
Representation:
Counsel:
Applicants : No appearance
Respondent : No appearance
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
(Page 3)
Summary of Tribunal's decision
1 In July 2008, Mr Bill Damave and Mrs Karla Damave applied to the Shire of Dandaragan for approval to erect a storage shed on Lot 230 Zendora Road, Alta Mare, Jurien Bay.
2 The application was refused by the Shire because it did not comply with the respondent's current policy on the scale of outbuildings, and Damaves applied to the Tribunal for a review of that decision.
3 The issue was whether on the merits of the case discretion should be exercised by the Tribunal to allow the application. In weighing this issue the questions were the weight to be given to the current policy, and whether there were relevant grounds in this case to depart from the policy.
4 The Tribunal found that the policy is based on sound planning principles, has been the subject of ongoing review and debate over an extended period of time, and has, in its current form, been in operation for over two years. It should therefore be given due weight in the current review.
5 However, the Tribunal found that the desire of an applicant to have more extensive outbuildings than permitted by the policy did not in this case constitute either an exceptional circumstance or establish a cogent reason why the planning principles that find expression in the policy should not be applied.
6 For these reasons the application for review was dismissed and the decision of the respondent affirmed.
Introduction
7 On 2 July 2008, Mr Bill Damave and Mrs Karla Damave (applicants) made an application to the Shire of Dandaragan (Shire or respondent) for planning approval to erect a storage shed on Lot 230 Zendora Road, Alta Mare, Jurien Bay (subject land).
8 The development application was refused by the respondent on 7 July 2008 for the following reason:
a) that the proposed shed does not comply with the Shire's current policy for sheds in 'Rural Residential' and 'Special Use Rural Development', as it exceeds the maximum allowed combined area for outbuildings by 54m2.
(Page 4)
9 On 30 July 2008 the applicants made an application to the State Administrative Tribunal for a review of the decision.
Subject Land
10 The subject land is referred to as Lot 230 Zendora Road, Alta Mare, Jurien Bay and is approximately 2.5 hectares in area.
11 The lot has dual frontage to Zendora Road and currently has improvements which comprise a single residence and two existing sheds of 162 square metres and 54 square metres, respectively. All of these structures are set well back from the lot boundaries; the residence 34 metres and the existing sheds 41 metres.
Proposal
12 The application involves the construction shed of 6 metres by 9 metres. The proposed shed is to be located centrally on the subject land midway between the residence and the existing sheds. It will comprise a steel structure clad with zinc/Colorbond Trimdeck sheeting with a concrete floor slab. The height of the walls will be 2.4 metres with a 10 degree pitched roof establishing a ridge height of approximately 2.9 metres.
Planning Framework
13 The subject land is zoned 'Rural Residential' under the Shire of Dandaragan Local Planning Scheme No 7 (LPS 7 or Scheme).
14 Clause 1.6 of LPS 7 sets out the objectives of the Scheme, of which the following is the most relevant to this application:
Develop a strategy to determine what level of development should occur in the towns of Jurien Bay, Cervantes, Badgingarra and Dandaragan.
15 Clause 2.2 of LPS 7 makes provision for the preparation of local planning policies while cl 2.3 of LPS 7 notes the following in regard to local planning polices:
Local Planning Policies are guidelines used to assist the local government in making decisions under the scheme. Although Local Planning Policies are not part of the Scheme, they must be consistent with, and cannot vary, the intent of the Scheme provisions, including the Residential Design Codes. In considering an application for planning approval the local government must have regard to relevant Local Planning Policies as required under Clause 10.2.
(Page 5)
16 Clause 5.3 states 'There are no exclusions or variations to the Residential Design Codes which apply to the Scheme'.
17 The Residential Design Codes of Western Australia (2008) (Codes 2008) at cl 6.10.1 establishes the performance criteria to be applied in assessing outbuildings as follows:
Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
18 Clause 5.14 of LPS 7 requires that 'approval to commence development is required for all development including a single house …' in a Rural Residential Zone.
19 Clause 10.2 of LPS 7 sets out matters to which the local authority is to have due regard when considering an application for planning approval and includes any local planning policy adopted by the local government.
20 The Shire also has development guidelines for Alta Mare which specify general requirements for development within a Rural Residential Zone. These guidelines at sub-clause (xi) require that 'The scale of outbuildings shall be of a domestic nature such that the rural residential amenity of locality is not prejudiced. Large industrial buildings will not be permitted'.
21 In April 1999 the Shire adopted a policy on outbuildings which restricted the maximum area to 200 square metres. This policy was amended in July 1999, at the request of Chesterton International, the developer of Alta Mare, to provide a revised maximum area of 300 square metres for outbuildings. This revised policy was in place from July 1999 to August 2006.
22 The Shire's current policy 'Policy Relating to the Scale of Outbuildings "Rural Residential" and "Special Use Rural Development" Zones', was adopted in August 2006 under the Shire's previous Local Planning Scheme, LPS No 6. The current policy makes provision for a maximum area of outbuildings of 216 square metres.
23 The statement of intent suggests the policy is intended to provide direction and guidance on the area and height of outbuildings in 'Rural Residential' and 'Special Use Rural Development' zones.
24 With regard to outbuildings in Alta Mare the policy limits 'Zincalume Clad' buildings to 12 square metres, and 'non-reflective material' to 162 square metres with potential for 216 square metres, subject to written approval from
(Page 6)
- adjoining property owners and Council approval.
25 Clause 7 of the policy states:
In considering an application, Council will have regard to streetscape, adjoining property owner's comments, the affect on the visual amenity of the adjacent area, justification for the need for the oversized building and unusual circumstances due to restrictive individual site conditions.
Respondent's arguments
26 The respondent indicated that the relevant policy applies to both Alta Mare and Jurien Bay Heights subdivisions; that is to 209 and 226 lots, respectively.
27 The respondent argued the objective of the current policy limit of 216 square metres on outbuildings in 'Rural Residential' and 'Special Use Rural Development' zones is 'to deter more commercial style activities taking place in sheds that are supposed to be for residential purposes'.
28 While the respondent concedes that the intention of the applicant is to use all existing and proposed onsite sheds for residential storage it submits that the 'shed comes too late after the original release of Alta Mare Stage 6, and does not comply with Council Policy'.
Applicants' arguments
29 The applicants argued that at the time they purchased the property in 2004 the respondent's policy provided for outbuildings up to a maximum of 300 square metres. As noted, this policy was in place from July 1999 to August 2006.
30 The applicants feel that as original landowners they should not be penalised by the imposition of the more restrictive provisions of the revised policy. At the time of the purchase of the subject land they did not have sufficient funds to construct 300 square metres of outbuildings.
31 One of the important considerations in purchasing the property was the potential to provide adequate outbuildings to store their possessions. As longterm residents of the town, they are hoping to retire in the near future and need more storage to store the following:
• Six motor vehicles;
(Page 7)
- • Three motorbikes;
• One boat;
• Two trailers;
• One rideon lawn mower;
• On retirement, tool of trade; and
• Caravan on retirement.
32 The site of the proposed shed is set back in the bush and will be used solely for storage, and the applicants see no reason why they should not be granted approval for the proposed outbuilding.
33 Finally, the applicants contend that rural residential landowners that owned their property prior to the inception of the latest policy should be able to build to the allowances of the policy which applied at the time they purchased their properties.
Tribunal consideration
34 The issue in this matter is whether on the merits of the case discretion should be exercised by the Tribunal to allow the application.
35 In weighing this issue the substantive questions are the weight to be given to the current policy, and whether there are relevant grounds in this case to depart from the policy.
36 In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 the Tribunal found:
For a policy to be given weight, it must be tested against the criteria set down in Permanent Trustee Australia Ltd v City of Wanneroo(1994) 11 SR(WA) 1. The test is:
(a) whether it is based on sound town planning principles;
(b) where it is a public, rather than a secret policy;
(c) whether it is a public policy conceived after considerable public discussion;
(d) the length of time that a policy has been in operation; and
(e) whether it has been continuously applied.
(Page 8)
37 In this context, the history of the current policy is a relevant matter. In April 1999 the Shire adopted a policy on outbuildings which restricted the maximum area to 200 square metres. This policy was amended in July 1999, at the request of Chesterton International, the developer of Alta Mare, to provide a revised maximum area of 300 square metres for outbuildings. The revised policy was in place from July 1999 to August 2006.
38 The original policy related to Alta Mare and Jurien Bay Heights. It was adopted under the provisions of the Shire's LPS No 6. Clause 6.11 of LPS No 6 of that scheme provided powers for the Shire to make planning policies. Clause 6.11.2 set out the procedures required in establishing policy and included the advertising of a summary of the policy, a review of a draft policy in the light of any representation made, final adoption and public advertising.
39 The Shire's current policy was adopted in August 2006, following advertising, also under LPS No 6.
40 The statement of intent suggests the policy is intended to provide direction and guidance on the area and height of outbuildings in 'Rural Residential' and 'Special Use Rural Development' zones.
41 Given this context, the Tribunal finds that the current policy is based on sound planning principles, has been the subject of ongoing review and debate over an extended period of time, and has, in its current form, been in operation for over two years. It should therefore be given due weight in the deliberations of the current review.
42 In addition, the Tribunal finds that there is no planning merit in seeking to apply the provisions of a previous policy to selected landowners simply on the basis that this policy applied at the time they purchased their properties. Such an approach raises substantive issues in terms of equity and would seriously undermine a legitimately made shire planning policy infringing the principle of orderly and proper planning.
43 In regard to the question of whether there are relevant grounds in this case to depart from the policy, the Tribunal found in Adbooth Pty Ltd and City of Perth [2007] WASAT 76:
As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], the existence of a policy cannot replace the discretion of the decisionmaker in the sense that it is to be inflexibly applied regardless of the merits of the particular case. However, 'the relevant consideration in
(Page 9)
- many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'. There is no cogent reason in this case to depart from the precinct plans or the Signs Policy.
44 In this context the question for this review is whether there are cogent reasons to depart from the current policy.
45 The current policy limits outbuildings in Alta Mare constructed of 'Nonreflective material' to 162 square metres with 216 square metres subject to written approval from adjoining property owners and Council approval.
46 The subject land currently has two existing sheds of 162 square metres and 54 square metres, respectively, giving a total area of outbuildings of 216 square metres. This represents the maximum envisaged by the policy subject to the requirements set out above. The addition of a further outbuilding of 54 square metres, if approved, would bring the total area of outbuildings to 270 square metres or 25% above the maximum recommended area.
47 There is no evidence that in assessing the application the Shire had regard to either the performance criteria of cl 6.10.1 of the Codes 2008, or the matters set out in cl 7 of the policy. There is also no evidence that adjoining land owners were consulted as required by cl 8 of the policy.
48 In addition, while no evidence was provided by either party to the Tribunal on the potential impacts beyond the applicants' suggestion that 'the proposed shed is set back in the bush', it is clear that the impacts of outbuildings at Alta Mare has over the past few years been an issue which has exercised the minds of both the Shire and the local community. It is also clear that the Shire, in introducing the current policy, was attempting to address the matter by providing direction and guidance on outbuildings.
49 In seeking to interpret the applicability of cl 7 of the policy, it would be reasonable to assume that the criteria would generally be applied to applications falling between the 162 square metres permitted and the potential for 216 square metres subject to approval from both adjoining owners and the Shire. Logically, it would also be applied in occasional circumstances, such as the current application, in assessing applications for outbuildings beyond the 216 square metre limit established by the policy.
(Page 10)
50 However, in order to retain the integrity of the policy, support for applications beyond the 216 square metres limit would have to be based on exceptional circumstances. The simple desire of an applicant to have more extensive outbuildings does not constitute either an exceptional circumstance or establish a cogent reason why the planning principles that find expression in the policy are not relevant to this particular application.
51 For these reasons, the application for review is dismissed and the decision of the respondent is affirmed.
Orders
52 For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
I certify that this and the preceding [52] 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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