Evans and City Of Bunbury
[2008] WASAT 199
•28 AUGUST 2008
EVANS and CITY OF BUNBURY [2008] WASAT 199
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 199 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:127/2008 | 23 JULY 2008 | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 28/08/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed | ||
| B | |||
| PDF Version |
| Parties: | DAVID ROBERT EVANS CITY OF BUNBURY |
Catchwords: | Town planning Refusal of retrospective development application Design Guidelines Gazebo Height Compatibility Setting Building style Pole style housing Topography Concrete slab on fill style housing Residential Special use Zone |
Legislation: | City of Bunbury Town Planning Scheme No 7, cl 4.7.2, cl 5.2.2, cl 5.3, cl 5.7.2, cl 5.9, cl 6.7.1, cl 10.2.1 Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2008) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 18 March 2008 to refuse development approval for a gazebo at No 13 (Lot 206) Hildas Close, College Grove is set aside and a decision is substituted that development approval is granted subject to the following conditions:,(1) The applicant is to modify the gazebo roof to comply with the current building licence and install appropriate screening to a minimum height of 1.6 metres above FFL along the three sections of the side of the gazebo overlooking adjoining Lot 203 Hildas Close, to the satisfaction of the Manager Development Services. |
Summary | This matter involved an application for review of the refusal of a retrospective development application for a new gazebo at No 13 (Lot 206) Hildas Close, College Grove.,In September 2006 the applicant received planning approval for a new two storey dwelling with an attached gazebo. The approved gazebo was shown with a roof pitch of 25 degrees. The gazebo was partially constructed with a roof pitch of 63 degrees and an overall height of 10.4 metres. ,The respondent received a complaint about the gazebo and requested the applicant to submit a new planning application for the revised gazebo.,The planning application for the gazebo with the steep roof pitch was refused for various reasons associated with the design and excessive height.,There was also a matter of overlooking, but in the respondent's decision and at the hearing, the parties agreed that the overlooking matter could be addressed by an appropriate condition requiring screening.,The issues were:,• whether the height of the gazebo was consistent with the planning framework; and,• whether the design of the gazebo was consistent with the planning framework.,The Tribunal found that there was only a small section of the top of a steeply sided pyramid that exceeded the 9 metre height and this was hidden amongst the treetops. The Tribunal found that the height of the gazebo was consistent with the planning framework.,The Tribunal found that, while the gazebo was not the same as the dwelling, it had enough similarity in style, material and colour to harmonise with the dwelling. The Tribunal found that both buildings shared a recognisable design theme; that the different roof pitches were not discordant; and the buildings were able to coexist in harmony with each other. The Tribunal found the gazebo was compatible with the main dwelling.,The Tribunal also found that the gazebo with its pole style construction was one of the few buildings that complied with the preferred style; that it sat well in its setting of trees; and the natural colours and materials were well suited to the settling of the landscape. The Tribunal found the gazebo was compatible with its setting.,Therefore, on the second issue, the Tribunal found that design of the gazebo was consistent with the planning framework. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : EVANS and CITY OF BUNBURY [2008] WASAT 199 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 23 JULY 2008 DELIVERED : 28 AUGUST 2008 FILE NO/S : DR 127 of 2008 BETWEEN : DAVID ROBERT EVANS
- Applicant
AND
CITY OF BUNBURY
Respondent
Catchwords:
Town planning Refusal of retrospective development application Design Guidelines Gazebo - Height Compatibility - Setting Building style Pole style housing Topography Concrete slab on fill style housing Residential - Special use Zone
Legislation:
City of Bunbury Town Planning Scheme No 7, cl 4.7.2, cl 5.2.2, cl 5.3, cl 5.7.2, cl 5.9, cl 6.7.1, cl 10.2.1
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008)
(Page 2)
Result:
Application for review allowed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr G Fitzgerald (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of Bunbury
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal of a retrospective development application for a new gazebo at No 13 (Lot 206) Hildas Close, College Grove.
2 In September 2006 the applicant received planning approval for a new two storey dwelling with an attached gazebo. The approved gazebo was shown with a roof pitch of 25 degrees. The gazebo was partially constructed with a roof pitch of 63 degrees and an overall height of 10.4 metres.
3 The respondent received a complaint about the gazebo and requested the applicant to submit a new planning application for the revised gazebo.
4 The planning application for the gazebo with the steep roof pitch was refused for various reasons associated with the design and excessive height.
5 There was also a matter of overlooking, but in the respondent's decision and at the hearing, the parties agreed that the overlooking matter could be addressed by an appropriate condition requiring screening.
6 The issues were:
• whether the height of the gazebo was consistent with the planning framework; and
• whether the design of the gazebo was consistent with the planning framework.
7 The Tribunal found that there was only a small section of the top of a steeply sided pyramid that exceeded the 9 metre height and this was hidden amongst the treetops. The Tribunal found that the height of the gazebo was consistent with the planning framework.
8 The Tribunal found that, while the gazebo was not the same as the dwelling, it had enough similarity in style, material and colour to harmonise with the dwelling. The Tribunal found that both buildings shared a recognisable design theme; that the different roof pitches were not discordant; and the buildings were able to coexist in harmony with each other. The Tribunal found the gazebo was compatible with the main dwelling.
(Page 4)
9 The Tribunal also found that the gazebo with its pole style construction was one of the few buildings that complied with the preferred style; that it sat well in its setting of trees; and the natural colours and materials were well suited to the settling of the landscape. The Tribunal found the gazebo was compatible with its setting.
10 Therefore, on the second issue, the Tribunal found that design of the gazebo was consistent with the planning framework.
Introduction
11 These proceedings involve an application brought by Mr David Evans (applicant or Mr Evans) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision of the City of Bunbury (respondent or Council) made on 18 March 2008 to refuse development approval for a gazebo with a steep roof pitch at No 13 (Lot 206) Hildas Close, College Grove (site).
12 On 26 September 2006 the applicant was granted planning approval to build a new two storey dwelling and an attached gazebo. A subsequent building licence application showed the dwelling and the gazebo with roof pitches of 25 degrees. The planning approval included a 4.5 metre side setback for the gazebo. The approved setback was a minor variation to the required 5 metres. The respondent stated that the variation was approved after consulting with the adjoining neighbour.
13 During construction the respondent received a complaint that the gazebo was not being built in accordance with the approval. On 19 December 2007 the respondent inspected the site and found that the constructed roof pitch exceeded the approved roof pitch.
14 The applicant was requested to submit a new planning approval for the variation to the gazebo. The revised application was submitted in December 2007 and advertised in January 2008 with three submissions expressing concern and two submissions supporting the proposal.
15 The respondent refused the application at its meeting on 18 March 2008 and required the gazebo roof to be built in accordance with the building licence, and in addition, required three sides of the gazebo to be screened.
Site and locality
16 The site has a battleaxe shape and is the rear lot with a battleaxe leg estimated at approximately 70 metres in length. Excluding the battleaxe leg, the site is almost rectangular with approximate dimensions of 33 metres width and
(Page 5)
- 61 metres depth. The site has an area of 2,236 square metres.
17 There is a significant fall of 9 metres across the rear rectangular section of the site, falling from the rear south-west corner to the opposite north-east corner. The fall is typical of lots on this side of Hildas Close and the fall continues at a similar gradient down the battleaxe leg to the street.
18 At the rear of the site is a reserve, currently shown as a reservoir site.
19 The site is located as part of stage 5 of the College Grove subdivision. The stage 5 subdivision, including the review site, contains 34 lots of sizes significantly larger than earlier stages of the College Grove subdivision. Stage 5 has an obviously different character than earlier stages, which are typically suburban, whereas stage 5 has a more open landscape character.
20 The site contains an existing dwelling which is a pole style dwelling - that is, a dwelling built on poles with the main floor level finishing above ground level rather than cut into the site. The pole style dwelling is consistent with figure 2 of the Local Planning Policy - College Grove (stage 5) Design Guidelines (Design Guidelines). However, the majority of houses in stage 5 have not used the pole design and are typical dwellings on concrete slabs which, because of the gradients in the locality, results in most dwellings being cut into their sites.
21 This is especially noticeable with the affected adjoining neighbour who has complained about the height of the gazebo. This neighbour's house is cut significantly into the site. On the other hand, the floor level of the gazebo is approximately 2 metres above ground level. A photograph submitted as part of the evidence clearly shows the relationship of levels between the neighbour's dwelling and the floor level of the gazebo.
22 The gazebo has been constructed and, although the cladding and detailing have not been finalised, the finished form, scale and height of the gazebo is clearly understood from the photographs submitted as part of the evidence and from a site inspection.
23 The review site, the adjoining lots and the locality of stage 5 in general, all contain areas of uncleared natural vegetation including mature trees.
(Page 6)
24 The Tribunal had the benefit of a view of the gazebo, the site and the locality in the company of representatives of both parties.
Planning framework
25 The site and the locality of stage 5 of the College Grove subdivision is zoned "Special Use" zone 39 under the City of Bunbury Town Planning Scheme No 7 (TPS 7 or Scheme). The uses permitted in this zone are Dwelling House and Home Occupation.
26 The conditions attached to Special Use zone 39 include provisions that:
• the minimum lot size is to be 1,500 square metres;
• no clearing of vegetation will be permitted outside a defined building envelope for each lot in the subdivision; and
• development is to conform to design guidelines to be adopted by the Council, addressing issues such as building height, encouraging the use of pole housing and encouraging the building styles that are sympathetic to the topography of the land.
27 Relevant clauses of the Scheme include cl 5.9.1.2, which deals with building height, and cl 10.2.1, which describes matters to be considered by the Council. These clauses are described in greater detail later in these reasons.
28 Also relevant in this review is the Local Planning Policy - Design Guidelines for College Grove - Stage 5. These are the Design Guidelines referred to in Special Use zone 39. They are directly relevant to the review and are described in detail later in these reasons.
Proposed development
29 The proposed development is a gazebo attached to the verandah that surrounds the existing dwelling. The gazebo is an octagon with sides of 2.2 metres and includes a small flat roofed extension on one side of the octagon.
30 The drawings show the finished floor level of the gazebo varying from 1.2 metres to 2.2 metres above natural ground level. The floor level is an extension of the main verandah level.
(Page 7)
31 The gazebo has a pyramid style roof with a 63 degree roof pitch. A surveyor measured the completed roof structure and reported that ground level under the centre of the gazebo was 13.94 metres (using a datum on the site), the decking level was 15.8 metres and the apex of the roof (minus the cladding) was 24.33 metres. The apex of the roof is 10.4 metres above ground level.
Council's decision
32 The Council advertised the development application and received five submissions, with three submissions expressing concern and two submissions supporting the proposal.
33 The development application was the subject of a detailed report to the Council, which included a comprehensive summary of the submissions and the surveyor's drawing. The report recommended refusal.
34 At its meeting on 18 March 2008 the Council made the following resolution:
Council, under and by virtue of the powers conferred upon it in that behalf by the Planning and Development Act 2005 hereby resolves:
1. The application for retrospective amended planning approval from Mr D R Evans for a gazebo with an overall height exceeding 9 metres on Lot 206 (No. 13) Hildas Close, College Grove be refused for the following reasons:
1.1 The development conflicts with Clause 5.9.1.2 of Town Planning Scheme No. 7 as the building height exceeds 9 metres and in the opinion of the local authority the proposed development will have a detrimental effect on adjoining residences.
1.2 The development conflicts with Clause 10.2.1 of Town Planning Scheme No 7 with regard to the following matters:
a) the compatibility of a use or development with its setting
b) the preservation of the amenity of the locality.
1.3 The development conflicts with Clause 11.0 of the College Grove (Stage 5) Design Guidelines which requires that the maximum building height of any building is to be 9 metres AHD.
- 1.4 The development conflicts with Clause 12 of the College Grove (Stage 5) Design Guidelines which requires outbuildings and other structures to be designed in a manner and constructed of materials so as to be visually compatible with the dwelling house that they are ancillary to.
- 2. The applicant is to modify the gazebo roof to comply with the current building licence and install appropriate screening to a minimum height of 1.6 metres above FFL along the three sections of the side of the gazebo overlooking adjoining Lot 203 Hildas Close, to the satisfaction of the Manager Development Services.
The issues
35 The submission of the adjoining neighbour and the report to Council dealt with an issue of overlooking. The Council's resolution dealt with this issue by requiring screening. The applicant has not objected to that part of the Council's decision. During the hearing both parties confirmed that the overlooking was not an issue for this review and that, regardless of the outcome of the review concerning the roof structure, screening would be required as described in the Council decision.
36 The following two issues arise for determination in this review:
1) whether the height of the gazebo is consistent with the planning framework; and
2) whether the design of the gazebo is consistent with the planning framework.
37 The Tribunal will address each issue in turn.
Whether the height of the gazebo is consistent with the planning framework
38 Mr Evans argued that the initial complaint from the neighbour arose because of the overlooking problem and that he has since agreed with the respondent to provide appropriate screening to protect the neighbour's privacy. Mr Evans expressed the opinion that the neighbour's concerns about height relate to the height of the floor level and the subsequent ease of overlooking.
39 In Mr Evan's opinion, the height of the roof is a technical problem with no relevance to the neighbour's amenity. The only part of the roof that exceeds the 9 metre height limit is a small section near the apex. He argued that the floor, the walls and the bulk of the roof are below the 9 metre height limit. He further argued that the apparent height
(Page 9)
- difference between the gazebo and the neighbour is a consequence of the steep topography of the land and the neighbour's decision to cut his house into the hill, rather than to follow the natural rise in ground level and step the house up the hill.
40 Mr Evans noted that apart from the immediate neighbour, it is difficult to clearly see the gazebo and that the reservoir site at the rear ensures that no future residential properties will be able to look down on the gazebo. He concluded:
I cannot see any reason why the tip of my gazebo roof would have any adverse impact as it is hidden among the tree tops on my block and does not extend above the same.
41 Mr Fitzgerald, a planner and the Manager of Development Services for the Council, gave evidence on behalf of the respondent. He described the planning framework as it applied to the review site which is in a Special Use zone. Clause 4.7.2 of TPS 7 provides that:
A person must not use any land, or any structure or building on land, in a Special Use zone except for the purpose set out against that land in Schedule 2 … and subject to compliance with any conditions set out in Schedule 2 with respect to that land.
42 Condition 6 for Special Use zone 39 requires development to conform to design guidelines adopted by the Council to address various issues including a specific mention of building height.
43 The Council in its decision and Mr Fitzgerald in evidence referred to cl 5.9.1.2.1 of TPS 7 which deals with building height. This clause states in full:
Before determining an application for any type of residential development in the Residential zone which incorporates a building or buildings where the average building height in respect of the existing ground level exceeds 9 metres and, in the opinion of the Local Government, the proposed development may have a detrimental effect on the nearby/adjoining properties, the local government shall advertise the proposal in accordance with the provisions of clause 9.4 of the Scheme.
44 The Council also referred to cl 10.2.1 of TPS 7 which deals with matters to be considered by Council. In terms of the height issue and matters to be considered, reference was made to subclause (n) "the preservation of the amenity of the locality".
(Page 10)
45 In simple terms, it is the respondent's position that it is appropriate to refuse the proposal because the height of the gazebo exceeds the maximum desired height of 9 metres and because it has an adverse impact on the amenity of neighbours and the locality.
46 Before turning to detailed consideration of the Design Guidelines, the Tribunal has some concerns with the use of cl 5.9.1.2.1. This clause specifically refers to "any type of development in the Residential zone". There does not appear to be a clause that links cl 5.9.1.2.1 to residential uses in the Special Use zone. For example, cl 5.2.2 of TPS 7 requires land with residential uses to comply with the Residential Planning Codes (which the Tribunal takes to mean the Residential Design Codes of Western Australia where the current version is dated (2008) (Codes)). Clause 5.2.2 links the Codes to the residential uses in Special Use zone 39. In cl 5.3 of TPS 7, which deals with special application of the Codes, there is nothing that links development requirements in cl 5.9, Residential zone, with residential uses in the Special Use zone.
47 Similarly, in cl 5.7.2 dealing with general development standards and in cl 5.9, there is nothing to suggest that cl 5.9.1.2.1 should apply to residential uses outside the Residential zone. Therefore, it is reasonable to conclude that cl 5.9.1.2.1 has no direct relevance to residential use in Special Use zone 39.
48 Even if a case could be made for the application of cl 5.9.1.2.1 to the review site, there would still be a problem for the respondent. This clause specifically refers to the "average building height" exceeding 9 metres above natural ground level. In the case of the gazebo, the average building height of the gazebo is less than 9 metres above natural ground level. Therefore, the respondent had no basis to advertise the proposal under cl 5.9.1.2.1 and no basis to refuse the application under cl 5.9.1.2.1. (The words "may have a detrimental effect on nearby properties" only applies where the average building height exceeds 9 metres.)
49 Clause 6.7.1 of TPS 7 deals with height. The acceptable development standard refers to table 3 which provides for a 9 metre maximum height to the top of a pitched roof except where stated otherwise in a local planning policy. In this case, the Design Guidelines are consistent with acceptable development standards for height to the top of a roof. If a proposal does not comply with the acceptable development standard, the performance criteria of cl 6.7.1 become relevant. For building height, new development should meet the criteria of cl P1 which reads:
(Page 11)
- Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of the adjoining properties, including, where appropriate:
Adequate direct sun to buildings and appurtenant open spaces;
Adequate daylight to major openings to habitable rooms; and
Access to views of significance.
50 There was no suggestion in the respondent's evidence that there were any concerns with sun, daylight or views. The only problem with the performance standards appears to be the requirements to be consistent with the desired height of the locality which is described in the Design Guidelines.
51 Ultimately the respondent needs to rely on the Design Guidelines.
52 Clause 11 of the Design Guidelines entitled "Building Height" contains two paragraphs: one dealing with building height and the other dealing, curiously, with kit homes with no obvious relationship to building height. The building height clause reads:
The maximum building of any building on any lot shall be nine (9) metres AHD above natural ground level. For the purpose of this clause natural ground level means the level of the ground prior to the commencement of any development, works or excavation on the site.
53 AHD typically means Australian Height Datum where the datum is sea level. The inclusion of the second sentence is fortunate because the use of AHD in the first sentence creates the potential for nonsense. Since the design guidelines describe a hilly area well away from the coast, a maximum height of 9 metres AHD technically requires the building to finish underground.
54 The applicant was reasonably confused by the AHD and since Council had referred to cl 5.9.1.2.1 of TPS 7 which, in turn, refers to average height, Mr Evans logically concluded that the AH part of AHD referred to average height.
55 The use of AHD and the inclusion of a clause on kit homes under the heading "Building Height" suggests careless drafting. Section 11 of the Design Guidelines on building height does not include any criteria to assess an application that exceeds the 9 metre limit. The only clue is contained in the objectives which refer to protecting the visual qualities of the area.
(Page 12)
56 The lack of criteria in the Design Guidelines leads back to the Codes to assess the proposal against the performance criteria of the Codes. However, as already mentioned above, there is no suggestion in the evidence that the proposal causes loss of daylight to windows, loss of sunlight or loss of views of significance.
57 Another criteria reasonably used to assess height is bulk. But in this case, the excess height is a small triangle in the top portion of a steeply sided pyramid partially hidden by trees. The Tribunal, in the company of the parties, attempted to obtain a view of the gazebo from the street. Despite being assured by a planning officer that a view was available, nobody in the viewing party was able to see the gazebo from the street during the viewing. The viewing party walked along the reserve at the rear of the site and obtained views of the gazebo but, in general, the gazebo was screened by trees, and the peak of the roof, where visible, was below tree level. The site was not viewed from the neighbour's site.
58 The Tribunal accepts the proposition that the gazebo is very high in relationship to the floor level and rear courtyard of the neighbour's house. However, this is a consequence of topography and the different design approaches used by the neighbours - the uphill neighbour (applicant) building a pole style house and the downhill neighbour using an on-ground concrete floor slab, cut into the hill. Even with a roof pitched at a complying 25 degrees, the relative height difference would be obvious.
59 The Tribunal finds the decision to use a steeper roof pitch does not cause a significant increase in bulk. There is only a small section of the top of a steeply sided pyramid that exceeds the 9 metre height, and this is hidden amongst the treetops. The proposed height is consistent with the planning framework.
Whether the design of the gazebo is consistent with the planning framework
60 The respondent argued that, even if the height was acceptable, the design of the gazebo was not acceptable because the roof pitch was incompatible with the design in its setting and incompatible with the adjoining residence.
61 Mr Fitzgerald, for the respondent, argued that the design was inconsistent with cl 10.2.1 of TPS 7, and specifically subclause (i), where the Council in assessing a development application is required to have due regard to "the compatibility of a use or development with its setting".
(Page 13)
62 The relevance of this clause is given more meaning by s 12 of the Design Guidelines which deals with outbuildings and other structures, and requires:
Outbuildings and other structures shall be located at the rear of dwelling houses. Outbuildings and other structures shall be designed in a manner and constructed of materials so as to be visually compatible with the dwelling house that they are ancillary to.
63 Hence there are two tests: whether the gazebo is compatible with its setting (this requires further reference to the Design Guidelines) and whether the gazebo is compatible with the adjoining dwelling.
64 "Compatible" is defined in Webster's third New International Dictionary as "capable of existing together without discord or disharmony". This is similar to the Macquarie Concise Dictionary 3rd Edition: "capable of existing together in harmony". Neither definition requires two items to be identical or similar.
65 During the hearing, Mr Fitzgerald agreed that the colours and materials of the gazebo were compatible with the dwelling. He argued that the problem of incompatibility was related to roof pitch. The existing dwelling has a roof pitch of 25 degrees whereas the gazebo has a roof pitch of 63 degrees.
66 The Tribunal observes that the planning framework does not require outbuildings to be the same as the main dwelling, but compatible. In this case, major elements of the gazebo are the same or similar as design elements in the main dwelling. Building materials, colours and detailing are common to both buildings. Also, the fundamental design principle is the same - both buildings are pole style buildings sitting above ground level.
67 There are only two obvious differences between the dwelling and the gazebo: the gazebo is an octagon (walls at 45 degree angles) and the gazebo has a different roof pitch. The Council has not objected to the shape difference but has objected to the roof pitch.
68 It is the Tribunal's finding that, while the gazebo is not the same as the dwelling, it has enough similarity in style, material and colour to harmonise with the dwelling. Indeed, there is a visual logic to expressing the gazebo as a separate element from the verandah. A change in the roof pitch is an obvious way to achieve that outcome. Both buildings share a recognisable design theme. The different roof pitch and the 45 degree walls are not discordant, and the buildings are able to coexist in harmony with each other.
(Page 14)
69 The question of compatibility of the gazebo with its setting is a little more difficult. It is necessary to refer further to the Design Guidelines to determine the desired setting. The objectives of the Design Guidelines require a "high standard of residential development" and that the "environmental and visual qualities of the area are protected and maintained".
70 The final, relevant planning requirement is mentioned in s 7 of the Design Guidelines. This section is quite disappointing in its usefulness and hints at former more extensive requirements. Section 7 under the heading "Building Style" includes one diagram, showing a cross-section through a hill with two pole houses stepped down a hill. The accompanying text requires in the first paragraph:
Residential development on any lot shall not be restricted to pole house design.
71 The sentence appears to be inconsistent with Special Use zone 39 of TPS 7 which requires development to "conform to design guidelines adopted by Council which address the issues of: … Encouraging the use of pole housing".
72 The only other requirement of s 7 apart from the diagram is in [2] which states:
Only building materials and colours which complement and are in harmony with the natural vegetation and appearance of the area shall be permitted. All materials (other than windows) and colours shall therefore be non-reflective, neutral and 'earth' in colour. Zincalume and white colorbond metal roof cladding shall not be permitted.
73 The gazebo and the existing dwelling are both pole style buildings - no longer required by the Design Guidelines but encouraged by Special Use zone 39 of TPS 7. The gazebo, consistent with the existing dwelling and Design Guidelines, includes prominent use of timber. The roof cladding, consistent with the dwelling and the requirements of the Design Guidelines, is a traditional red colorbond roofing material. However, when it comes to guidance on desired building styles and the setting for other buildings, the Design Guidelines may have been useful once but are now too vague to guide on a preferred style. It is reasonable to conclude from the wording of s 7 of the Design Guidelines
(Page 15)
- when combined with Special Use zone 39 that if any style is preferred then pole style buildings are the preferred style.
74 Most dwellings in this zone of convention project style homes of concrete slab on ground style of construction. The gazebo with its pole style construction is one of the few buildings that comply with the preferred style. It sits well in its setting of trees, and the natural colours and materials also fit well into the settling of the landscape. The vertical element of the roof fits well with the tall trees around the gazebo. The Tribunal finds that the gazebo is compatible with its setting.
Conclusion
75 The Tribunal assessed the gazebo against the planning framework. In this process, the Tribunal found that the Design Guidelines were disappointing and lacked detailed guides where they would have been useful. There were curious anomalies within the Design Guidelines and the section on Building Style, in addition to being limited, may be inconsistent with Special Use zone 39.
76 The Tribunal found that the height of the gazebo was consistent with the planning framework. The Tribunal also found that the design of the gazebo is consistent with the planning framework.
77 The most significant planning issue was an overlooking issue. However, the parties agreed a resolution of this issue prior to the hearing.
78 It follows that the application for review should be allowed the decision of the Council to refuse development approval should be set aside.
Orders
79 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 18 March 2008 to refuse development approval for a gazebo at No 13 (Lot 206) Hildas Close, College Grove is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(1) The applicant is to modify the gazebo roof to comply with the current building licence and
- install appropriate screening to a minimum height of 1.6 metres above FFL along the three sections of the side of the gazebo overlooking adjoining Lot 203 Hildas Close, to the satisfaction of the Manager Development Services.
I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER
0
0
3