EVANS and SHIRE OF ROEBOURNE
[2010] WASAT 93
•30 JUNE 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: EVANS and SHIRE OF ROEBOURNE [2010] WASAT 93
MEMBER: MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 30 JUNE 2010
FILE NO/S: DR 468 of 2009
BETWEEN: LEONIE EVANS
Applicant
AND
SHIRE OF ROEBOURNE
Respondent
Catchwords:
Town planning Development Retrospective approval Placement of sea container within the front setback area for use as storage of household furniture and cyclone storage Streetscape Visual impact - Existence of unauthorised structures - Orderly and proper planning
Legislation:
Planning and Development Act 2005 (WA), s 164, s 252(2)
Residential Design Codes of Western Australia (2008), cl 6.2.1, cl 6.10
Shire of Roebourne Town Planning Scheme No 8, cl 4.4, cl 4.4(a), cl 4.4(e), cl 4.4(h), cl 4.4(i), cl 4.5, cl 5.8, cl 6.2.3, cl 6.3.1, cl 6.10, cl 6.10.2, cl 6.10.3, App 1, Pt V
State Administrative Tribunal Act 2004 (WA), s 54(10)
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr D Milk (Representative)
Respondent: Mr P McClure (Representative)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter concerned the review of a condition imposed on a retrospective approval for the placement of a sea container on No 2 Stanbridge Way, Millars Well. The condition imposed required the relocation of the sea container behind the front building line of the subject land by 1 November 2010.
The principal issue that arose in determination of this matter was whether the sea container detracted from the streetscape.
The Tribunal found that the sea container was clearly visible from Stanbridge Way, Higham Road and from surrounding properties, and that the visual outlook from those streets and the adjoining residences was significantly diminished, and that the streetscape and character of the area was negatively affected by the visual prominence of the sea container. The Tribunal found that the proposal did not satisfy the performance criteria or objectives of the Residential Design Codes of Western Australia (2008) and was contrary to the intent of the Shire of Roebourne Local Planning Policy DP7 Residential Frontage. The application for review was dismissed and the decision of the respondent was affirmed.
Introduction
Ms Leonie Evans (applicant) made application to the Shire of Roebourne (respondent) for retrospective planning approval for the placement of a sea container within the front setback area on No 2 (Lot 2231) Stanbridge Way, Millars Well (subject land).
The development application was approved by the respondent at its meeting of 19 October 2009 subject to six conditions. The applicant was aggrieved by condition 1 of the approval and, on 4 December 2009, made application under s 252(2) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. Condition 1 of the approval reads as follows:
1.Prior to this approval having force or effect[,] four [4] copies of a revised site plan generally in accordance with the site plan submitted for the October Ordinary Council Meeting must be submitted to Planning Services for endorsement. The revised plan must have regard to the following:
(i)The location of the sea container being behind the front building line (not within the primary street frontage).
(ii)The sea container being suitably screening [sic] from public view to the satisfaction of Planning Services:
Note: Should additional fencing or other measures to screen the sea container be employed, such measures must be sufficiently documented on the revised site plan and, if necessary, elevations must be submitted.
(iii)The sea container being set back a minimum 1500mm from the secondary street and a minimum 1000mm from any common property boundary in accordance with the acceptable development provisions contained within the Residential Design Codes of Western Australia and/or local planning policy DP7 'Residential Frontage'.
Once endorsed[,] the revised site plan shall form part of this approval.
The matter proceeded to mediation with me as the mediator. A total of three mediation sessions were held with the parties, one of which was held in Karratha and involved a view of the subject land. As part of the mediation process, the respondent was invited by the Tribunal to reconsider the reviewable decision. The respondent, at its meeting of 19 April 2010, varied the decision as follows:
1.Amending condition 1 to state:
(i)The sea container shall be located behind the front building line (not within the primary street frontage) by November 2010.
(ii)The sea container shall be suitably screened from public view to the satisfaction of Planning Services.
Note:Should additional fencing or other measures to screen the sea container be employed, such measures must be sufficiently documented on the revised site plan and, if necessary, elevations must be submitted.
(iii)The sea container shall be set back a minimum 1500mm from the secondary street and a minimum 1000mm from any common property boundary in accordance with the acceptable development provisions contained within the Residential Design codes of Western Australia and/or local planning policy DP7 'Residential Frontage'.
2.Deleting condition 6 which [is] the expiry period of the original approval.
Although the respondent had varied the approval in accordance with the mediated outcome, the applicant was still aggrieved by the decision and pressed for the matter to be determined by the Tribunal. Section 54(10) of the State Administrative Tribunal Act 2004 (WA) precludes the Tribunal member conducting the mediation from taking any further part in dealing with the proceedings after the mediation unless all parties agree to him or her doing so. The parties in these proceedings consented to me determining this matter on the documents that have been filed and any oral submissions made by the parties.
Subject land
The subject land is 744.43 square metres in area and is located on the corner of Stanbridge Way and Higham Road. Structures on the subject land include an existing single storey dwelling, pergola, spa enclosure, a small colorbond shed, a fish pond and the sea container.
The proposal
The sea container is constructed from pressed metal and is being used for the storage of household furniture and cyclone storage. It is located in the northwest corner of the subject land at the junction of Stanbridge Way and Higham Road and is set back approximately 1.3 metres from the corner truncation and 1.6 metre from Stanbridge Way, which is the primary street. The sea container is positioned behind the existing front screen wall, is green in colour and is, to some extent, screened by two frangipani trees which are located within the road reserve.
Planning framework
The subject land is zoned Residential with a density coding of R20 under the Shire of Roebourne Town Planning Scheme No 8 (TPS 8 or Scheme). Clause 5.8 of the Scheme sets out objectives for Karratha and includes:
(ix) Enhance the high level of residential amenity within Karratha in both existing suburbs and the residential expansion areas.
Clause 6.2.3 of TPS 8 provides that '[u]nless otherwise provided for in the Scheme[,] the development of land for any of the Residential Purposes dealt with by the Residential [Design] Codes (Codes) shall conform to the provisions of those Codes.' The sea container is to be used for the purposes of an outbuilding to store domestic items associated with the single house, and therefore falls within the provisions of the Codes. The relevant provisions of the Codes pertaining to this review are cl 6.2.1 'Setback of buildings generally' and cl 6.10 'Outbuildings'. The pertinent performance criteria that are required to be satisfied include the need to 'contribute to the desired streetscapes' and 'not detract from the streetscape or the visual amenity of residents or neighbouring properties'.
Further, cl 6.3.1 of the Scheme requires that, where residential development guidelines have been adopted and included in the policy manual in accordance with Pt V of the Scheme, development within the Residential zone shall be in accordance with the intent of these guidelines, unless, for a particular planning application, Council resolves to vary this intent. The respondent, pursuant to Pt V of the Scheme, has adopted Local Planning Policy DP7 Residential Frontage (LPP DP7), which provides:
Outbuildings, sea containers and ground-mounted satellite dishes are discouraged within the primary street setback area unless it can be demonstrated that no alternative location exists, and that the proposed development will not have an adverse impact on the streetscape.
Further, cl 6.10 of the Scheme relates to transportable structures, which is defined in Appendix 1 'Definitions' as:
a building or structure which has been prefabricated at another location and transported either whole or in parts to the intended location.
The proposed development would fall within this definition. When considering a planning application which includes transportable buildings and structures, the Council, under cl 6.10 of the Scheme, is required to have regard for:
(a)whether the structure is to be permanent or temporary[;]
(b)the location and design of the structure in relation to surrounding structures and other physical features[;]
(c)the footings or other methods of stabilising the structure[;] and
(d)proposed landscaping to be associated with the structure.
Clause 6.10.2 of the Scheme provides that Council may specify a period to which planning approval applies and the requirements for removal of structures which are intended to be temporary. Further, cl 6.10.3 of the Scheme provides that Council may require modifications, additions or landscaping to be undertaken as part of the placement of transportable structure.
Clause 4.5 of TPS 8 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Further, cl 4.4 of TPS 8 sets out the matters that the Council is to have regard to in determining an application. The relevant matters relating to this application are as follows:
•the provisions of the Scheme (cl 4.4(a));
•any policy statement, strategy or plan adopted by the Council under the provisions of the Scheme and any Council policy affecting the land (cl 4.4(e));
•any relevant submissions or objections received or sought on the application (cl 4.4(h)); and
•the requirements of orderly and proper planning and the preservation of the amenity of the locality (cl 4.4(i)).
As noted earlier, the sea container has already been placed onsite. TPS 8 does not contain any provisions relating to retrospective approval. However, this is not a barrier to approval, as power to grant approval to 'development already commenced or carried out' lies with s 164 of the PD Act. The principles governing retrospective approval have previously been considered by the Tribunal in Burnett and Town of Cambridge [2006] WASAT 29 at [20] [22]. It is with these principles in mind that the Tribunal approaches this review.
Planning issues
The issue in dispute in relation to this matter is whether the sea container will detract from the streetscape.
The applicant submitted that the sea container has been located on the subject land behind existing vegetation in an effort to reduce the impact of the structure on the street. The applicant contended that it was difficult to locate the sea container at the rear of the property as it would need to be lifted over the existing dwelling and the available area at the rear was restricted due to a Water Corporation sewer main, which was located in the southeast corner of the lot. There was also reluctance by the applicant to relocate the sea container to the rear of the property as this area had been landscaped and established as an outdoor area.
The Tribunal's attention was also drawn to the fact that five submissions were received by the respondent from neighbours supporting the placement of the sea container within the front setback area of the subject land.
The applicant also produced photographic evidence of other streetscapes in Karratha to demonstrate that this type of structure was not unfamiliar in the locality and to highlight the prevalence of other personal possessions, such as boats and caravans, in the front setback areas. The applicant argued that the residential character of the area was already affected and that the proposal would not detract from the amenity of the locality.
The Tribunal was able to gain a full appreciation of Stanbridge Way and the surrounding streets, as a view was held on 12 March 2010. The evidence shows that Stanbridge Way is a looped road, and that the pattern of subdivision is generally single residential in character, although there are a number of larger lots that have been developed with grouped dwellings, all of which have uninterrupted frontage to Stanbridge Way. The existing streetscape is characterised by single storey dwellings with a consistent front setback that is either grassed/landscaped in some fashion and varying degrees of car parking visible from the street. Generally, the parking structures are located alongside the existing dwelling. However, there are a number of carport structures located forward of the dwellings and there are several boats and caravans in clear view from the street.
Sea containers have an industrial appearance and are generally not considered appropriate structures within residential areas as they are visually intrusive and unsympathetic with the form and style of development found in residential areas. Although, the respondent's LPP DP7 does provide for the placement of sea containers in residential areas provided they are not within the front setback area and do not have an adverse impact on the streetscape.
The sea container is clearly visible from Stanbridge Way, Higham Road and from surrounding properties. The visual outlook from those streets and adjoining residences is significantly diminished and the character of the area is negatively affected by the visual prominence of the sea container. The sea container detracts from the streetscape as it is a discordant element that obscures the residential dwelling from the street and interrupts the visual interface between the public and private realm. Clearly, the location of the sea container in the front setback area does not satisfy the performance criteria or the objectives of the Codes and is contrary to the intent of LPP DP7.
The applicant continually pointed to the host of unauthorised structures and the myriad of personal possessions located within the front setback areas as justification for approving this application. The respondent acknowledged that unauthorised development is a major issue within the Shire but maintained that officers of the respondent are continually undertaking compliance action, as was the case in this instance. There was, however, recognition that perhaps further action was required to enforce the Scheme provisions, particularly in relation to unauthorised sea containers located in front setback areas, and indications made that plans have been devised to address the issue in the coming months.
The Tribunal does not consider the issue of apparently unauthorised development and its impacts to be a valid reason to further an unsatisfactory planning outcome. The Tribunal considers that approval of development that diminishes the existing residential character of the area and has a negative impact on the existing and future amenity of the locality is contrary to orderly and proper planning and, as such, the application does not warrant support.
The Tribunal notes that the reconsideration issued by the respondent gave the applicant until 1 November 2010 to remove or relocate the sea container from the front setback area. The Tribunal understands that this date coincides with the cyclone season and gives the applicant ample time to find alternative solutions and, as such, the Tribunal is prepared to accede to this timeframe. However, under different circumstances, the Tribunal would not normally agree to such a lengthy period.
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.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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