DIRECT HOMES WA and SHIRE OF SERPENTINEJARRAHDALE
[2020] WASAT 128
•21 OCTOBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DIRECT HOMES WA and SHIRE OF SERPENTINEJARRAHDALE [2020] WASAT 128
MEMBER: MS D QUINLAN, MEMBER
HEARD: 17 SEPTEMBER 2020
DELIVERED : 21 OCTOBER 2020
FILE NO/S: DR 6 of 2020
BETWEEN: DIRECT HOMES WA
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Application for retrospective approval - Unlisted use - Whether consistent with local planning policy - Classification of type of sign - Wall sign or billboard sign - Whether consistent with Rural zone - Whether compatible with its setting and amenity of the locality
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(m), cl 67(n)
Planning and Development Act 2005 (WA), s 87, s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2, cl 1.9, cl 3.2.5, cl 5.10.1
State Administrative Tribunal Act 2004 (WA), s 27, s 29(3)
State Planning Policy 7.3 - Residential Design Codes Volume 1
Result:
Decision of respondent affirmed
Summary of Tribunal's decision:
The proceedings arose in the Tribunal following a refusal on 23 December 2019 by the Shire of Serpentine-Jarrahdale (Shire) of an application seeking retrospective planning approval for an advertising sign (proposed development) situated on Lot 801 near the corner of Thomas Road and Kargotich Road, Oakdale (subject site).
In the exercise of the Tribunal's discretion to make the correct and preferable decision upon review, the Tribunal concluded that it should affirm the refusal by the Shire for the following reasons:
(a) the proposed development was inconsistent with the Shire of Serpentine Jarrahdale Local Planning Policy 4.11: Advertising and Shire of Serpentine Jarrahdale Local Planning Policy 4.2: Sea Containers;
(b) the proposed development was inconsistent with the purpose and intent of the Rural zone in the Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 (TPS2) as well as the objectives currently proposed in the draft Shire of Serpentine-Jarrahdale Local Planning Scheme No. 3;
(c) the proposed development was not compatible with its setting; and
(d) the proposed development would have, and currently has, an adverse impact on the appearance of the streetscape and amenity of the locality.
Category: B
Representation:
Counsel:
| Applicant | : | Mr M Wilson (director) |
| Respondent | : | Ms H O'Brien (planning advocate) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Lambert and City of Armadale [2017] WASAT 144
Rochester and Shire of Northam [2019] WASAT 107
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings arise in the Tribunal following a refusal on 23 December 2019 by the Shire of Serpentine-Jarrahdale (Shire or respondent) of an application for planning approval made by Direct Homes WA (applicant) seeking retrospective approval for an advertising sign (proposed development). The proposed development is situated on Lot 801 located near the corner of Thomas Road and Kargotich Road, Oakdale (subject site).
Following assessment of the proposed development, the Shire's officers prepared a report for Council recommending refusal. The respondent determined that the proposed development was not consistent with the objectives and purpose of the 'Rural' zone and therefore did not advertise the proposed development.
At its meeting held on 23 December 2019, Council considered the application and resolved to refuse the application for the following reasons:
(1)The retrospective wall signage is not permitted in the Rural zone in accordance with the Shire of Serpentine Jarrahdale Local Planning Policy 4.11 - Advertising.
(2)The signage is not directly related to any land use on the subject site, contrary to the Shire of Serpentine Jarrahdale Local Planning Policy 4.11 - Advertising.
(3)The signage would adversely impact on the character and amenity of the area.
On 13 January 2020, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (the PD Act), the applicant lodged an application in the Tribunal for a review of that refusal by the Shire.
The applicant agreed with paragraphs 1 to 32 of the respondent's statement of issues, facts and contentions with the only point of divergence between the parties arising in the respondent's contentions.
Section 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that the Tribunal is to consider the matter afresh, is not confined to matters before the original decision-maker, is not limited by the reasons provided by the original decision-maker or the grounds in the application and is to produce the correct and preferable decision at the time of the review.
In the exercise of the Tribunal's review jurisdiction, pursuant to s 29(3) of the SAT Act, the Tribunal may affirm, vary or set aside the decision that is being reviewed. If the Tribunal sets aside the decision being reviewed it may substitute its own decision or send the matter back for reconsideration. The Tribunal may also, in any case, make any order the Tribunal considers appropriate.
Issue to be determined
The issue to be determined by the Tribunal in these proceedings is whether it is appropriate in the exercise of the Tribunal's discretion upon review, when making the correct and preferable decision at the time of the review, to approve the proposed development giving consideration to the following three sub-issues:
(1)Whether the proposed development is consistent with the Shire of Serpentine Jarrahdale Local Planning Policy 4.11: Advertising (LPP 4.11).
(2)Whether the proposed development is consistent with the purpose and intent of the Rural zone in the Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 (TPS2) or the objectives of the draft Shire of Serpentine-Jarrahdale Local Planning Scheme No. 3 (draft LPS3).
(3)Whether the proposed development is compatible with its setting and the amenity of the locality.
The subject site
The subject site can be described more particularly as follows:
(a)has a total area of 15.52 hectares;
(b)has a frontage of approximately 366 metres to Thomas Road and approximately 380 metres to Kargotich Road;
(c)is relatively cleared of vegetation;
(d)has been developed with a water tank and two sea containers which display the signage the subject of the application for retrospective approval; and
(e)the subject site adjoins Lot 802 to the west and Lot 3 to the south which are also owned by the applicant.
During the hearing the Tribunal had the benefit of a view of the subject site and locality. As the applicant is seeking retrospective approval, the Tribunal was able to see the proposed development in situ.
The proposed development
The proposed development can be described as follows:
(a)displaying of signage on two stacked '20 foot' sea containers;
(b)the signage measures a width of 6 metres with a height of 4.8 metres;
(c)the signage is set back 80 metres from the northern lot boundary fronting Thomas Road and 88 metres from the eastern lot boundary fronting Kargotich Road; and
(d)the signage displays advertising for 'Direct Homes WA' picturing a large dwelling with two double garages stating 'Farmhouses from $209,000' and 'Choose your builder before you choose your home'.
Planning framework
Metropolitan Region Scheme
The subject site is zoned 'Rural' under the Metropolitan Region Scheme.
TPS2 and draft LPS3
The subject site is zoned 'Rural' under TPS2 and draft LPS3.
Clause 5.10.1 of TPS2 sets out the purpose and intent of the Rural zone, as follows:
The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
Both parties agree that the proposed development is not specifically mentioned in Table 1 - Zoning Table of TPS 2 (Zoning Table) and is, therefore, a use not listed. Where a proposed development constitutes a use not listed, cl 3.2.5 of TPS2 provides:
If the use of land for a particular purpose is not specifically mentioned in the zoning table and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:
a)determine that the use is not consistent with the objectives and purpose of the particular zone and is therefore not permitted; or
b)determine that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the advertising procedures of Clause 64 of the Deemed Provisions in considering an application for planning consent.
The Tribunal understands that draft LPS3 has been substantially progressed beyond advertising, in that pursuant to s 87 of the PD Act draft LPS3 is presently before the Minister for Planning for consideration and to be approved or, potentially, for modifications to be required by the Minister for Planning.
The objectives for the Rural zone under Table 2 of cl 16 in draft LPS3 are as follows:
•To provide for the maintenance or enhancement of specific local rural character.
•To protect and accommodate broad acre agricultural activities such as cropping and grazing and intensive uses such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility with the primary use.
•To maintain and enhance the environmental qualities of the landscape, vegetation, soils and water bodies including groundwater, to protect sensitive areas especially the natural valley and watercourse systems from damage.
•To provide for the operation and development of existing, future and potential rural land uses by limiting the introduction of sensitive land uses in the Rural zone.
•To provide for a range of non-rural land uses where they have demonstrated benefit and are compatible with surrounding rural uses.
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in Sch 2 a number of deemed provisions which are deemed to be included in the local planning scheme text (Deemed Provisions).
The subclauses in cl 67 of the Deemed Provisions that are relevant matters for the Tribunal to have due regard to in these proceedings are, in summary, as follows:
•(a) aims and provisions of the TPS2;
•(b) requirement of orderly and proper planning including a proposed local planning scheme that has been advertised;
•(g) any local planning policy;
•(m) the compatibility of the development with its setting including the likely effect of the height, bulk, scale; and
•(n) the amenity of the locality including environmental, character and social impacts.
Draft LPS
The Shire of Serpentine Jarrahdale Local Planning Strategy (draft LPS) dated September 2019 has been prepared alongside draft LPS3. Draft LPS provides the following description for 'Rural' in cl 3.3 on page 32:
The Rural land use category provides for a full range of rural land uses, tourism opportunities, rural enterprise and the preservation of the natural landscape. Rural land facilitates agricultural production and the protection of the natural landscape. A significant proportion of the Shire is comprised of rural areas which are located in many of the undeveloped areas of the Shire where it is considered preferable for large lots to be retained[.]
The draft LPS includes in its rationale on page 32 that '[p]reserving the natural landscape is also an important function of the Rural land use category to maintain rural character'.
LPP 4.11
The Shire of Serpentine Jarrahdale Local Planning Policy 4.11: Advertising (LPP 4.11) states the following eight objectives of LPP 4.11:
a)To ensure that the siting, design and general appearance of advertising and signage does not detract from the landscape values, amenity and character of the area.
b)To ensure that advertising signs are not misleading, offensive or distracting for vehicular and pedestrian traffic.
c)To ensure that signs make a positive contribution to the streetscape and streetscape interaction.
d)To ensure that the scale of the sign is appropriate to the size of the building or façade upon which it will be displayed.
e)To improve the quality of advertising signs and their overall visual impact.
f)Ensure that signs are constructed and maintained to ensure public safety at all times.
g)To rationalise signage across a building or façade so as to minimise the proliferation of signage in a particular location.
h)To protect the heritage values of any place included on the heritage list.
Policy measure 2 of LPP 4.11 provides:
Signs proposed on private land are required to comply with Acceptable Development Criteria or Performance Criteria under Table 2 of this Policy for that particular sign. Signs must be directly related to the land or building in which the sign is located[.]
LPP 4.11 provides for permission for certain advertising signs in particular zones. LPP 4.11 uses the symbol 'P' where a particular type of sign is permissible (without the need for development approval) if it complies with the defined acceptable development standards and where it does not comply with those standards, a development application is required. Similarly, a development application is required where the symbol 'A' applies. Where the proposal falls within a defined sign description and an 'X' symbol applies, the sign is not permitted under the provisions of LPP 4.11.
A 'wall sign' is defined in Table 2 of LPP 4.11 as 'an advertisement affixed flat to a building wall or painted onto a building wall and/or fascia'.
In the definitions section of LPP 4.11 a 'wall' is defined as follows:
… a vertical external face of a constructed building comprising solid building material and includes any openings (windows/doors) but does not include a fence. A building may consist of several walls each wall being defined by a clear edge at which the angle of alignment of the adjoining wall changes.
A 'building' is defined in State Planning Policy 7.3 - Residential Design Codes Volume 1 (R-Codes) as:
Any structure whether fixed or moveable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools.
A 'Billboard sign - large' sign is defined in Table 2 of LPP 4.11 as:
… a large freestanding display surface, the width of which is greater than the height and which may be positioned on the ground or mounted on more than one vertical support.
A 'Billboard sign - large' is classified as 'A' in Table 1 of LPP 4.11, meaning that a development application is required and that the proposed signage is required to comply with the general provisions, acceptable development standards, and/or the performance criteria. LPP 4.11 lists the acceptable development standards for a 'billboard sign - large' as follows:
•The maximum total sign face area is 36m² per face, for a maximum of two faces.
•The maximum height above the ground is to 6.5m or the height of a building in close proximity, whichever is the greater, but should not exceed 8.4m. The height of a building is defined as the height of the uppermost part of the building above ground level.
•Must be mounted as a freestanding structure.
•Must not be located less than 3.0m from the front property boundary (including the primary and secondary street frontages of a corner lot), and must not project beyond the alignment of any property boundary.
•Must not face adjoining premises unless the sign is a minimum of 3.0m from the property boundary of that premises, or unless the landowner of the adjoining premises consents to the sign being a lesser distance from the boundary.
•Must not be erected to expose an unsightly back view of the sign to a road or other public place.
•Must not be located on a street frontage of a premises along which is located another billboard sign, billboard sign - large, ground sign, pole sign, pylon sign or pylon sign - large.
Where the acceptable development standards cannot be met, LPP 4.11 also provides in Table 2 a number of performance criteria against which the proposal can be assessed. Relevant to the proposed development the performance criteria includes that:
(a)the size of the sign is in keeping with scale of the development or site on which it is proposed;
(b)the colour and shape is complementary to the development and surrounding landscape; and
(c)the location is sympathetic to the existing landscape /streetscape.
LPP 4.2
The Shire of Serpentine Jarrahdale Local Planning Policy 4.2: Sea Containers (LPP 4.2) states the following two objectives of LPP 4.2:
1.Ensure that sea containers are situated and appear visually integrated with the surrounding area.
2.Ensure the location and use of sea containers do not result in an adverse impact on amenity or streetscape.
LPP 4.2 provides that sea containers are exempt from requiring development approval when complaint with the requirements in Table 1. Those requirements, relevant to the size of the subject site are as follows:
…
xiii.A maximum of two (2) 40ft sea containers or equivalent, may be permitted per property;
xiv.Sea containers may be stacked to a maximum of two (2) sea containers high, providing issues of amenity are addressed and subject to the containers being secured to the ground[;]
xv.Sea container(s) shall be suitably screened and/or fenced from the road frontage, be situated behind the building line/front setback area of the property and painted in a colour that is consistent with the surrounding built or natural environment to blend the container(s) with its surrounding environment, unless otherwise determined by Council;
xvi.Sea container(s) must satisfy the setback requirements according to the Scheme/building envelopes and the Building Code of Australia Classification[; and]
xvii.Sea Container(s) are not to be located over septic tanks and/or leach drains or utilities.
The Shire's case
The Shire provided a statement of issues, facts and contentions, a bundle of documents and a witness statement from an expert town planner, Mr Ryan Fleming.
The Shire submitted that the proposed development should not be approved, in summary, for the following reasons:
(a)the proposed development should be classified under the definition of 'Wall sign' in LPP 4.11 and cannot be approved in the Rural zone under that policy;
(b)Even if the sign can be defined as a 'Billboard sign - large' under LPP 4.11, the sign does not meet the acceptable development standards or the performance criteria;
(c)the proposed development is inconsistent with the objective and purpose of the Rural zone in TPS2 and the objectives in draft LPS3; and
(d)the proposed development is incompatible with its setting and the amenity of locality.
The applicant's case
The applicant provided a reply to the Shire's statement of issues, facts and contentions. Other than the documents attached to the application for review, the applicant did not provide any further documents, witness statements or expert reports in support of the applicant's case.
The Tribunal explained to the applicant the importance of asking a witness questions in cross-examination if any part of their evidence is challenged or disputed. However, the applicant elected to decline the opportunity to conduct any cross-examination of the Shire's expert town planner, Mr Fleming.
The applicant submitted that the proposed development should be approved for the following reasons:
(a)the Director of the applicant resides on land adjoining the subject site (Lot 3) and works primarily from that residence, therefore there is a business associated with the proposed development;
(b)the proposed development is not a 'Wall sign' and should be classified under the definition of 'Billboard sign - large' in LPP 4.11 as it is a large freestanding display (the sea containers), the width is greater than the height (6 metres in width and 4.8 metres in height) and it is positioned on one or more vertical supports (four posts positioned in each corner of the sea container to which the sign is affixed);
(c)the 'farmhouse' referred to in the proposed development is suited to the full range of rural pursuits in the Rural zone and fits in with the aesthetics and character of the area; and
(d)the proposed development is positioned to advertise the applicant and capture the attention of 30,000 cars per day which travel along Thomas Road.
Throughout the applicant's statement of issues, facts and contentions as well as the applicant's submissions at hearing, the applicant suggested a number of alterations to the proposed development which may be acceptable to the Shire or the Tribunal. The Tribunal informed the applicant that these suggestions amounted to a negotiation of substantive amendments to the proposed development and such negotiations could not occur at a final hearing. The Tribunal also informed the applicant that such substantive alterations to the proposed development could not form an appropriate condition of approval and, therefore, went beyond the jurisdiction of the Tribunal in determining the proposed development in these proceedings.
Planning expert evidence
In his expert witness statement dated 31 July 2020, Mr Fleming provided his planning opinion concerning issue (a), as to whether the proposed development is consistent with and should be approved under LPP 4.11, summarised as follows:
(a)The proposed development is more consistent with the definition of a 'wall sign' than the definition of a 'Billboard sign - large' under LPP 4.11.
(b)Clause 1.9 of TPS2 provides that the definition of a 'building' from the R-Codes is incorporated into TPS2. The sea containers fall within the R-Codes definition of a building and therefore the proposed development must be defined as a 'Wall sign' and cannot be considered as any other sign type under LPP 4.11.
(c)Notwithstanding that a 'Wall sign' is not permitted in the Rural zone in accordance with LPP 4.11, the proposed development is inconsistent with the development standards for a 'Wall sign' as it is affixed to a building which is not the business premises to which the sign is advertising. There are no buildings or uses on the subject site to which the sign relates. This point is further emphasised within policy measure 2 which requires for signage to be directly related to the land or building in which it is located. The signage is standalone and does not relate to any activity on the subject site.
(d)As the proposed development is inconsistent with the provisions of the policy, consideration must be given to the objectives. The proposed development does not comply with the relevant objectives (a), (c) and (e) of LPP 4.11. The proposed development is 'bulky' as a result of its scale and affixation of the sign to the sea containers, which is generally not the style of signage expected to be found within a rural area. Signage within rural areas is generally small in scale and designed to be less visually prominent within the streetscape. The sign, by way of its scale and visual bulk creates a prominent feature that does not positively contribute to the streetscape.
(e)The proposed development warrants refusal as it is not only inconsistent with the provisions of LPP 4.11 but also its objectives.
In his expert witness statement dated 31 July 2020, Mr Fleming provided his planning opinion concerning issue (b), as to whether the proposed development is consistent with the purpose and objective of the Rural zone, summarised as follows:
(a)Issue 2 relates to the land use permissibility and whether the proposed development is capable of approval.
(b)The proposed development is a sign providing third party advertising for the applicant. There are no land uses under Table 1 - Zoning Table of TPS2 that include advertising as a primary use or that otherwise best describe the proposal, therefore the proposal is considered a 'use not listed'. Clause 3.2.5 of TPS2 provides a 'use not listed' is not permitted where it is inconsistent with the objectives and purposes of the relevant zone.
(c)The proposed development is inconsistent with the objective and purpose of the Rural zone in that it is not, nor related to, a rural pursuit. This type of signage is more typically found in urban, commercial or industrial areas. The activity of selling or constructing houses is not a rural pursuit or associated with a rural pursuit.
(d)The use is not consistent with the objective of the Rural zone. In accordance with cl 3.2.5 of TPS2, the use is therefore not permitted and cannot be approved.
In his expert witness statement dated 31 July 2020, Mr Fleming provided his planning opinion concerning issue (c), as to whether the proposed development is compatible with its setting and the amenity of the locality, summarised as follows:
(a)Mr Fleming determined the locality of the area for the purposes of addressing the setting and amenity: see annexure 1 to his witness statement. The locality he defined is bounded by Thomas Road to the north, Kargotich Road to the east, Rice Road to the west and Abernethy Road to the south. In determining the boundaries of the locality, Mr Fleming gave consideration to the zoning, character and geographical land features within close proximity of the subject site.
(b)Having viewed the locality, he formed the view that the scale and nature of the proposed development is not consistent with the existing rural character. Land within the locality primarily features pastoral and grazing land boarded by post and wire fencing. Development in the locality is sparsely located, single storey and not visually prominent within the streetscape.
(c)The proposed development is considered out of character with the locality by way of its form and external appearance. The affixation of the sign to the sea containers creates a visual appearance of bulk which is in conflict with the rural landscape. Signage within the locality is generally twodimensional and has a reduced visual appearance that is more consistent with the rural landscape.
(d)The bulky appearance of the proposed development, high visibility from the streetscape and inconsistency with the expectation regarding signage in the locality, as defined by the existing character, results in an adverse visual impact on the amenity of the locality, which should not be approved.
Consideration: issue (1) - whether the proposed development is consistent with LPP 4.11
Clause 67 of the Deemed Provisions provides that the Tribunal must have due regard to LPP 4.11 as a local planning policy. However, the Tribunal is not bound by LPP 4.11. Therefore, whilst LPP 4.11 may not permit the sign. LPP 4.11 cannot exclude its approval.
Having noted that limitation to LPP 4.11, the Tribunal finds in the circumstances of these proceedings that LPP 4.11 is a highly relevant local planning policy regarding which the Tribunal will not only have due regard as required under the Deemed Provisions but also finds it is appropriate to attribute considerable weight.
The Tribunal places significant weight, and relies upon for determination of all three issues, the uncontested expert planning evidence of Mr Fleming which I find was easily understood, logical and reasonable.
The Tribunal finds that the proposed development does not comply with LPP 4.11 for the following reasons:
(a)the proposed development advertises the building of 'farmhouses' and there is no dwelling or business associated with the subject site;
(b)is contrary to policy measure 1 of LPP 4.11 in that the proposed development does not directly relate to the subject site or building in which the sign is located;
(c)the proposed development best fits within the definition of a 'Wall sign' in LPP 4.11 which is not permitted in the Rural zone by operation of LPP 4.11;
(d)the proposed development is not a 'Billboard sign - large' for the purposes of the definition in LPP 4.11 in that it is not freestanding (the sea containers are freestanding, not the sign itself) nor is it mounted on more than one vertical support;
(e)even if it did fit within the definition of 'Billboard sign - large', the proposed development does not in any event comply with the acceptable development standards in LPP 4.11 in that it is not freestanding and the rear displays an unsightly back view to Kargotich Road; and
(f)even if it did fit within the definition of 'Billboard sign - large', the proposed development also does not comply with the performance based criteria in LPP 4.11 for size, colour and shape or location as it appears as an incongruous feature on the subject site and the surrounding locality.
The Tribunal further finds, even though the applicant owns the adjoining two lots, Lot 802 and Lot 3 (where the director of the applicant resides and primarily from which he works), that this fact does not constitute a direct relationship between the proposed development and the three lots on which the proposed development is located. The office related work of the applicant is not its primary business. The primary business of the applicant evident from the proposed development is the building of 'farmhouses' and that does not occur on the three lots. This is in contrast with nearby businesses such as Borello Cheese and a riding school.
Therefore, the Tribunal finds the proposed development cannot, for the number of reasons elucidated above, comply with the highly relevant LPP 4.11. This finding by the Tribunal weighs heavily against the exercise of discretion to approve the proposed development.
Consideration: issue (2) - whether the proposed development is consistent with the purpose and intent/objectives of the Rural zone
The Tribunal finds that the proposed development is a use not listed in the Zoning Table contained in TPS2 and cl 3.2.5 provides that the Tribunal may determine that the proposed development is not permitted if the Tribunal finds that it is inconsistent with the objectives and purpose of the Rural zone.
TPS2 only provides for one purpose and intent for the Rural zone 'to allocate land to accommodate the full range of rural pursuits and associated activities'.
'Rural use' is a defined termed in TPS2 and, not surprisingly, a 'P' use in the Rural zone. However 'rural pursuit' is not defined in TPS2. In Rochester and Shire of Northam [2019] WASAT 107 at [25] and Lambert and City of Armadale [2017] WASAT 144 at [15] 'rural pursuit' was a defined term in the relevant local planning scheme.
The Tribunal concurs with, and relies upon, the view of Mr Fleming that the proposed development is inconsistent with the objective and purpose of the Rural zone in TPS2 in that it is not, nor related to, a rural pursuit (or 'rural use' as defined) or associated activity.
The Tribunal has also given consideration to the objectives for the Rural zone under Table 2 of cl 16 in draft LPS3 and finds that the proposed development does not satisfy those objectives. In particular, the Tribunal finds that the proposed development negatively affects the maintenance of the local rural character.
Consideration: issue (3) - whether the proposed development is compatible with its setting and the amenity of the locality
Issue 3 arises from cl 67(m) and cl 67(n) of the Deemed Provisions which relevantly provide that the Tribunal must have due regard to the compatibility of the proposed development with its setting including the relationship it would have with adjoining land and the locality including the bulk and scale and the impact on amenity of the locality.
The Tribunal concurs with, and relies upon, the view of Mr Fleming that the proposed development is out of character for the locality by way of its bulk, scale and form and has an adverse visual impact on the streetscape as well as the amenity of the locality. This finding by the Tribunal provides a further substantial reason weighing against the exercise of discretion to approve the proposed development.
The Tribunal also further finds, whilst sea containers are permitted in certain circumstances under LPP 4.2, that the proposed development is inconsistent with LPP 4.2 in that the sea containers are not visually integrated with the surrounding area and result in an adverse impact on the amenity and streetscape.
Conclusion
Therefore, in accordance with these reasons, in the exercise of the Tribunal's discretion to make the correct and preferable decision upon review, the Tribunal concludes in relation to the application for retrospective approval of the proposed development as follows:
(a)the proposed development is inconsistent with LPP 4.11 and LPP 4.2;
(b)the proposed development is inconsistent with the objective of the Rural zone in TPS2 as well as the objectives currently proposed in draft LPS3;
(c)the proposed development is not compatible with its setting; and
(d)the proposed development would have, and currently has, an adverse impact on the appearance of the streetscape and amenity of the locality.
Orders
In accordance with these reasons, the Tribunal determines that the appropriate orders to be made under s 29(3) of the State Administrative Tribunal Act 2004 (WA) are as follows:
1.The decision of the respondent on 23 December 2019 to refuse the application for retrospective approval is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
21 OCTOBER 2020
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