DEANE-SPREAD and SHIRE OF MUNDARING
[2005] WASAT 117
•30 MAY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT :TOWN PLANNING AND DEVELOPMENT ACT 1928
CITATION: DEANE-SPREAD and SHIRE OF MUNDARING [2005] WASAT 117
MEMBER: MR J JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 23 MARCH 2005
DELIVERED : 30 MAY 2005
FILE NO/S: RD 189 of 2004
RD 281 of 2004
BETWEEN: NOEL GARY DEANE-SPREAD
Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Town planning - Proposed parking of a commercial vehicle - (Former) s 10(3) notice Town Planning and Development Act 1928 to cease - Refusal of retrospective approval - Application of policy
Legislation:
Town Planning and Development Act 1928 (WA), (former) s 10(3)
State Administrative Tribunal Act 2004, s 25(2)
Result:
Application RD 281 of 2004 for review of the refusal of the application for retrospective planning approval for the parking of a commercial vehicle is dismissed.
Application RD 189 of 2004 for review of the s 10(3)(a) notice that the parking of the commercial vehicle stop and the vehicle to be removed from the land, is dismissed.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr Len Kosova
Solicitors:
Applicant: Self-represented
Respondent: As Agent
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR J JORDAN (SENIOR SESSIONAL MEMBER):
REASON FOR DECISION
Application
These are applications for review of decisions made by the Shire of Mundaring not to allow the parking of a commercial vehicle, a prime mover, at the southern side and toward the rear of the house at Lot 19 (No 35) Glenwood Avenue, Helena Valley.
Background
In September 2003 the respondent refused an application to park the commercial vehicle on Lot 19 due to non-compliance with its commercial vehicle parking policy. An appeal against that decision was not accepted by the then Town Planning Appeal Tribunal as it was out of time.
Also in September 2003 the respondent resolved to issue a notice under s 10(3), as it then was, of the Town Planning and Development Act 1928 (WA), directing that the applicant remove the commercial vehicle from the property. The notice was served on 28 June 2004 and is the subject of RD 189 of 2004, filed 5 August 2004, currently before the Tribunal.
In September 2004, the applicant lodged a fresh application for retrospective planning approval for the parking of his commercial vehicle. This was refused by the respondent in October 2004. An appeal was lodged on 24 November 2004 and this is RD 281 of 2004.
At the directions hearing on 24 February 2005 an order was made that, as provided for under s 25(2) of the State Administrative Tribunal Act 2004 (WA), the operation of the direction issued under the former s 10(3) notice is stayed.
The merits of the proposed development were then the subject of submissions by the applicant and the respondent at the hearing before the Tribunal on 23 March 2005.
Planning framework
Lot 19 and the similar sized lots to the north, behind to the east and across the road to the west are zoned "residential", with a coding of R5, under Shire of Mundaring Town Planning Scheme No 3 (TPS 3). Adjacent to the southern boundary is a reserve for recreation separated from Lot 19 by a pedestrian access way.
Commercial vehicle parking is a use not listed in the zoning table of TPS3. Clause 3.2(4) provides that the respondent, and therefore the Tribunal on review, when dealing with a use not listed may, alternatively, determine that the use is not consistent with the objectives of the zone, or, determine that the use is consistent with the objectives of the zone.
The objectives for the Residential zone are found in cl 3.1(7) and relevant to this matter is:
"(c)to limit non-residential activities to those of which the predominant function is to service the local residential neighbourhood and for self-employment or creative activities, provided such activities have no detrimental effect on the residential amenity."
Clause 6.6(16)(a) of TPS3 provides for the granting of retrospective planning approval.
Clause 6.7 lists other matters to which regard may be had in considering an application. These include:
"(b)the preservation of the amenity of the locality;
…
(k)the impact of the proposal on the character and the amenity of the area in terms of architectural, historic or aesthetic beauty or interest or imposition."
The Respondent has adopted a "Commercial Vehicle Parking Policy" ("Policy"). The Policy at para 4.0 sets out various assessment criteria. At para 4.1 for the Residential Zone it states:
"(a)The vehicle, together with the load thereon should not exceed 2.7 metres in height.
(b)Vehicle to be housed within a domestic garage and/or parked behind the front building setback line, with the vehicle being screened from the street and surrounding properties by a screen fence or adequate landscaping.
(c)The parking of a commercial vehicle shall not, in the opinion of Council, adversely affect the amenity of the surrounding land.
(d)At least six (6) of the following seven (7) performance standards being satisfied:
•the property accommodating residential development at a density no greater than an R5 density (i.e. max. 1 dwelling per 2000m2);
•the vehicle to be housed within a domestic garage;
•the load on the vehicle is to be of a height which ensures that the vehicle together with its load does not exceed 2.7 metres in height;
•the property having direct access or frontage to a distributor road;
•not more than one commercial vehicle to be parked on a lot;
•the vehicle forms an essential part of the occupation of an occupant of the dwelling; and
•no valid objections from the surrounding residents/land owners." [sic]
The respondent's decisions
The s 10(3) notice issued 28 June 2004 stated:
"3.The development has been undertaken in contravention of the Scheme as it has not been approved by the Council of the Shire;"
and the direction in the notice said:
(a)remove the commercial vehicle from the Land by no later than 70 days after the service of this direction; and
(b)stop the use of the land for the Development no later than 70 days after the service of this Direction and thereafter not recommence the Development."
The reason given for refusal to grant retrospective planning approval for the parking of the commercial vehicle in October 2004 was:
"Non-compliance with Council's Commercial Vehicle Parking Policy."
Discussion
Lot 19 has an area of 1850 metres square and is on the east side of Glenwood Avenue. To the north‑east and across the road are residential lots of similar size. To the south is a reserve for recreation, separated from Lot 19 by a pedestrian access way. The side setback of the house from the southern boundary is 7.8 metres. The vehicle would be parked near the rear of the house, in this setback, on a driveway that extends from the Glenwood Avenue frontage to a shed at the rear boundary.
The commercial vehicle is a prime mover approximately 3.2 metres high, 4 metres to the top of the exhaust, 6 metres long and 2.5 metres wide. The 1.8 metres high boundary fence and gates across the driveway at the front setback of the house screen all but the top 1.35 metres of the vehicle. Photographs show the top of the bonnet, the top of the cab and sleeping area behind are visible.
The applicant said he is a sub‑contractor with a large company and the prime mover is used to move trailer loads of goods. No trailers are parked at Lot 19. The vehicle is started and leaves Lot 19 between 5.00 pm and 5.30 pm and returns at 10.00 am the following day. On occasion the vehicle is away for up to three days at a time. The applicant said the vehicle is worth $200 000 and has to be secure. It costs too much to secure it at a location other than Lot 19.
In support of his submission, the applicant said that the original complaint which gave rise to the respondent having notice of this matter related to the vehicle being parked on his front verge for a week while he waited to have the power lines lifted. Since the power lines were lifted the vehicle has been parked behind the rear building line of the house and out of sight from the north and the east.
Following a suggestion at a case‑management conference the applicant investigated the possibility of erecting a shed to house the truck but found this to be too expensive.
The applicant also obtained a quote for the erection of a vertical screen made of a shade‑cloth 4 metres high and 12 metres long erected on metal poles. He said he was prepared to erect the screen along the southern boundary and the vehicle then could not be seen by people in the park or approaching along Glenwood Avenue from the south. He pointed out that with the screen the parked vehicle would only be visible to people directly opposite the driveway and they had no objection. He said he would be prepared to plant appropriate vegetation along the boundary, but as this would take time to provide a screen he would erect the shade cloth screen.
Mr Warwick Carter, a planning officer with the Shire of Mundaring, appeared as a witness for the respondent. Mr Carter said the proposed use did not comply with the Policy because:
•the vehicle is over height;
•Lot 19 is coded R5, but at 1850 metres squared it is not at a density of one dwelling per 2000metres squared;
•the vehicle is not to be housed in a domestic garage; and
•Glenwood Avenue is a suburban street, not a distributor road.
It was Mr Carter's submission that the proposed use complies with only two of the seven dot points in para 4.1(d) of the Policy instead of the required six. The two points of compliance he considers to be are that there is not more than one commercial vehicle and the vehicle forms an essential part of the occupation of an occupant of the dwelling.
Relative to para 4.1(b) of the Policy, Mr Carter said the respondent had noted that the applicant was willing to erect a screen along the southern boundary but had still resolved to refuse the application because it was not clear to what extent the screen would be suitable for obscuring the vehicle.
Mr Carter was of the view that the parking of the vehicle adversely affected the amenity of the area and so is not consistent with objectives for the residential zone set out in the Policy or cl 3.1.7(c) of TPS 3.
The parties were asked how they considered the amenity and character of the locality would be affected by the use applied for. Noise was mentioned by both parties, but the comments made did not assist as they were simply personal opinions without any expert support.
In Mr Carter's opinion the vehicle would have a detrimental effect on local character and amenity because it is a residential area without any other trucks. The vehicle would be conspicuous from the adjoining properties and reserve and the screening effect of shade‑cloth was not known. He was concerned such a screen would deteriorate by fading and becoming "tacky".
Mr Carter acknowledged the vehicle is used for self‑employment, but said it was not related to residential activity. The coming and going of a truck of this type is not generally experienced in the local road network and could give rise to safety issues, although these were not identified. He believed the opinions of neighbours could not be accurately determined because the proposed use had not been advertised.
Mr Carter alluded to a complaint from a neighbour and the applicant said he believed there had been a complaint prior to the respondent approaching him about the vehicle. No evidence of such a complaint, however, was put before the Tribunal by either party and so has had no bearing on this matter.
The applicant had letters from three neighbours opposite and the next door neighbour to the north individually written in support of his application after he had approached them.
The applicant said this is a locality of large, vegetated blocks and his truck at the rear of the lot would be out of site of most homes. He would be prepared to plant trees along his fence, although they would be slow in growing. A 4 metres high shed housing the vehicle would be more intrusive than the screen suggested. He is of the view that the movement of his truck and the parking of it has negligible impact on his neighbours as evidenced by the comments in the letters from neighbours.
Conclusion
Large commercial vehicles are not usually found in residential localities and can be an intrusion both when parked and when travelling on local streets. The respondent has recognised that there might be occasions when a commercial vehicle can be permitted to park on a residential lot. The overarching objective in allowing a commercial vehicle is that it is not to adversely affect the amenity of the locality. To assist in the assessment of an application for such use the respondent has adopted a commercial vehicle parking policy that sets out performance standards to be addressed.
The over size vehicle in this instance fails to meet sufficient of the performance standards to achieve acceptance under the Policy. The personal circumstances that the applicant outlined have been noted, but they cannot be given weight in the consideration of this matter. Section 61(3) of the Town Planning and Development Act 1928 provides that regard may be had only to claims of personal hardship when the matter under consideration is a subdivision of not more than three lots.
Lot 19 is bounded on one side by an expanse of open space devoid of vegetation other than grass. Even when the vehicle is parked to the rear of a house it is obvious from the south and south-west. The visual impact is therefore over a wider area than those situations where a truck is largely out of site behind a house on a lot surrounded by other houses. The applicant raised the prospect of erecting a screen behind which the vehicle would be parked. The vehicle, however, is higher than the standard in the Policy so the screen would have to be 4 metres high and 12 metres long. That is, higher than a screen would otherwise be for a vehicle consistent with the size limit. This screen would of itself have some impact on local amenity. An erection of this type has not been the subject of any formal opportunity for comment by the local residents.
Given the size of the vehicle and that it does not meet sufficient of the standards set out in the Policy, I find on balance that the respondent is to be supported in this instance.
Orders
The orders of the Tribunal are:
1. In respect of RD 281 of 2004, the Application for review of the Respondent's refusal to grant retrospective planning approval for the parking of a commercial vehicle is dismissed.
2. In respect of RD 189 of 2004, the application to set aside the direction in the s 10(3)(a) notice that the parking of the commercial vehicle on Lot 19 stop and the vehicle be removed from the land, is dismissed. The order to stay this decision is hereby lifted.
I certify that this and the preceding 9 pages comprise the reasons for decision of the Tribunal.
______________________
J Jordan
Senior Sessional Member
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