DEKKER and CITY OF ALBANY
[2005] WASAT 112
•25 MAY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: DEKKER and CITY OF ALBANY [2005] WASAT 112
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 MAY 2005
FILE NO/S: RD 347 of 2005
BETWEEN: ROBERT JOHN DEKKER
Applicant
AND
CITY OF ALBANY
Respondent
Catchwords:
Town Planning - Outbuilding - Setback relaxation - Special rural area
Legislation:
State Administrative Tribunal Act 2005 (WA), s 7, s 27(3), s 29, s 29(3), s 71(1)
Town Planning and Development Act 1928 (WA), s 38(4),
Result:
Application Dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER):
REASONS FOR DECISION
Issue
An application for review of the decision by the respondent not to allow a relaxation of the 15 m setback for purposes of erecting an outbuilding in an area designated as Special Rural Area 12.
Background
The application was lodged with the State Administrative Tribunal (SAT) in February 2005. On the SAT day stamp of the application it is noted as 18 February 2005. The application is classified as a Class 1 appeal in accordance with s 38(4) of the Town Planning and Development Act 1928.
The applicant lodged an application with the respondent on 8 December 2004 for permission to erect an outbuilding within the 15 m setback area designated as Special Rural Area 12. The land is described as Lot 315, Pinaster Road, Willyung. The land is 1.78 h in size. A single house is situated on the land. The house is approximately 18m from the western boundary.
The applicant seeks to construct the outbuilding 6m from the property boundary. The respondent notified the applicant on 14 January 2005 that the application for relaxation had been rejected. The respondent provided reasons for the decision.
At a directions hearing held on 9 March 2005, Member Moharich made orders for the parties to file documents and make submissions. In accordance with s 62 SAT Act the matter is dealt with on the basis of those documents.
The respondent submitted its bundle of documents on 27 March 2005. The documentation was prepared in a very professional and user-friendly manner and appreciation is expressed to Mr Thomas Soundness, the officer responsible.
The following is a summary of reasons provided by the applicant for the application to be considered favourably:
(a)Due to the location of the residence, compliance with the 15 m setback would place the outbuilding in the direct line of sight of the residence and would complicate access to the outbuilding.
(b)Trees would shield the outbuilding while access to emergency vehicles would not be compromised.
(c)The neighbour closest to the proposed outbuilding has agreed in writing for the relaxation to be approved.
(d)Many other buildings in the area are within the 15m setback. Approval of this application would therefore not set a new precedent.
The following is a summary of the reasons provided by the respondent for the application to be refused:
(a)The Special Rural Area 12 requires that all buildings and structures are to have a 15 m setback from the boundary of a property. The proposal by the applicant requires a setback of 9 m less that the standard set by the respondent.
(b)The land zoned as "Special Rural" within the Planning Scheme requires that the development of a "Single House" landuse is a matter that requires Planning Scheme Consent. (Town Planning Scheme No. 3 Amendment no.226, 4 June 2004). The land was rezoned from "rural" to "special rural" under amendments 147 and 200 to the Town Planning Scheme.
(c)Some of the special provisions of the Special Rural Scheme describe it as to provide for "rural residential living", and building and structures shall be in a setback of a minimum of 30 m from the lot boundary abutting Rocky Road and 15 m from all other lot boundaries. The purpose of the setback is to ensure that buildings and structures are remote from each other, which in turns adds to the "rural character".
(d)The reasons offered by the applicant are wanting in that they relate to the "use and management" of the existing dwelling but no physical constraints were cited as grounds to relax the boundary setback requirements. The lot is of sufficient size to locate the outbuilding within any other part in compliance of the setback requirements.
(e)Regardless of the letter of support from the neighbour, the decision maker must take into account that the outbuilding will be visible from the adjoining property on the western side and from the other properties in the locality. "Vegetation screening" does not offer a solution due to the requirements to maintain a 20 m wide low fuel buffer around buildings and outbuildings (provisions 5.3 and 7.1 Special Rural Area 12).
(f)The decision should therefore be affirmed and the application dismissed.
Statutory framework
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004. In exercising its review function SAT deals with a matter in accordance with the State Administrative Tribunal Act 2004 (s 17) and the enabling Act (s 38(4)(a)(i)).
The Tribunal comprised of Dr B De Villiers.
The Tribunal has in accordance with s 29(1) of the State Administrative Tribunal Act 2004 the same jurisdiction, functions and discretions as those of the decision maker.
The Tribunal is not limited to the statement of reasons given by the decision maker (s 27(3) State Administrative Tribunal Act 2004). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) State Administrative Tribunal Act 2004).
The review hearing is therefore "de novo" ((s 27(1) State Administrative Tribunal Act 2004) and is not confined to the matters and information that were before the decision-maker at the time of the decision.
The powers of Tribunal according to s 29(3) State Administrative Tribunal Act 2004 are to –
(a)Affirm the decision; or
(b)Vary the decision; or
(c)Set aside the decision, and
to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the primary decision maker being the Town of Albany (s 29(5) State Administrative Tribunal Act 2004).
Consideration
The land the subject of this application is zoned as Special Rural Area 12 under the City of Albany and Planning Scheme Consent is required for the setback of 15m to be relaxed. The objective of the zoning is for the area to retain its rural character, enhance rural residential living and to minimise the visible impact of development by the erection of buildings in an area that is close to the lot boundaries. There is no reference to the capacity of the Council to relax setbacks – particularly not for mere convenience of the landowner.
The reasons offered by the applicant in support of the application relate to their personal convenience. The decision maker must however also take wider considerations into account for example maintaining the integrity of the planning scheme, the interests of current and future neighbours and the applicant's reasons for the proposed relaxation.
The decision maker indicated its willingness to positively consider an application for relaxation of a setback for reasons of physical constraints or inappropriate building surfaces such as swamps or granite outcrops. The applicant does not rely on any of such potential reasons.
The support expressed for the application by a neighbour is noted but the decision maker must also take the interests of other neighbours as well as future owners of the neighbouring property into account when the application is considered.
In an internal memorandum dated 12 January 2005 Mr Thomas Soundness, planning officer, concludes after a site visit that he "really cannot see sufficient justification for the relaxation". The Tribunal comes to a similar conclusion after having studied the photographs and the motivation offered by the applicant.
The application for review should therefore be dismissed and the decision by the City of Albany dated 14 January 2005 affirmed.
Order
The application is dismissed.
I certify that this and the preceding 6 pages comprise the reasons for judgment of the State Administrative Tribunal.
__________________
B de Villiers
Member
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