Evers & Anor and Shire Of Serpentine*Jarrahdale
[2008] WASAT 5
•11 JANUARY 2008
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | EVERS & ANOR and SHIRE OF SERPENTINE-JARRAHDALE [2008] WASAT 5 |
| MEMBER | : | MR R EASTON (SENIOR SESSIONAL MEMBER) |
| HEARD | : | 24 OCTOBER 2007 |
| DELIVERED | : | 11 JANUARY 2008 |
| FILE NO/S | : | DR 285 of 2007 |
| BETWEEN | : WAYNE EVERS CHERYL EVERS Applicants |
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Additional dwelling - Rural worker's dwelling - Close proximity, clustered together - Potential subdivision pressure - Agistment
Legislation:
Planning and Development Act 2005 (WA), s 25
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.10.3,
cl 5.10.3(a), cl 5.10.3(a)(i)
Town Planning and Development Act 1928 (WA)
[2008] WASAT 5
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
| Applicants | : | Self-represented |
| Respondent | : | Mr M Daymond (Acting as Agent) |
Solicitors:
| Applicants | : | Self-represented |
| Respondent | : | Shire of Serpentine-Jarrahdale |
Case(s) referred to in decision(s):
Nil
[2008] WASAT 5
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 This matter involved an application for review of the Shire of
Serpentine-Jarrahdale's refusal of a development application for an additional dwelling on the "Rural" zoned Lot 2 (193) Randell Road, Mardella.
2 The planning framework permits a second dwelling on "Rural" zoned
lots if the additional dwelling is a "Rural Worker's Dwelling" and if the
second dwelling is located in close proximity to the existing dwelling.3 The respondent refused the application arguing that the proposed
dwelling was not a "Rural Worker's Dwelling" and that it was not in close
proximity to the existing dwelling.4 The Tribunal determined that the proposed dwelling could be
classified as a "Rural Worker's Dwelling". However, the Tribunal found that the proposed dwelling was not in close proximity to the existing dwelling.
The application for review of the respondent's decision was
dismissed.
Introduction
6 These proceedings involve an application brought by Wayne and
Cheryl Evers (applicants, Mr Evers or Mrs Evers) for a review of the decision of the Shire of Serpentine-Jarrahdale (respondent or Council) made on 20 July 2007 to refuse development approval for a "Rural Worker's Dwelling" at Lot 2 (193) Randell Road, Mardella (subject land).
7 The application was dated 30 April 2007 and proposed the
development of a second dwelling on the subject land, which has an area of 40.10 hectares and is located in the "Rural" zone. The second dwelling was proposed to be located 120 metres west of an existing dwelling in an existing cleared area.
On 20 July 2007, the respondent refused the application for the following reasons:
"1. The proposed location and use of the dwelling does not comply with clause 5.10.3 (a)(iii) and (iv) of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 as [2008] WASAT 5
the dwelling does not satisfy the requirements for a Worker's Rural Dwelling and is not located within close proximity of the existing dwelling on site.
2. The applicant has not provided adequate justification with respect to the purpose of the proposed 'Rural Worker's Dwelling' in terms of the type of work that the Rural Worker will be undertaking on site.
3. The application submitted indicates an intention to subdivide the land in the future and the significant distance between the existing and proposed dwellings may provide and impetus for this to occur in contravention of the minimum lot size of 40 hectares permitted in the Rural Zone."
On 10 August 2007, the applicants lodged an application for review of the respondent's refusal.
Subject land
10 The subject land is described as Lot 2 (No 193) Randell Road,
Mardella. It has a 684 metre frontage to Randell Road and a 585 metre frontage to Kargotich Road. The subject land has an area of 40.0573 hectares.
11 In general, the size of the subject land is typical of lots in the area.
The obvious exception is lots on the north side of Randell Road which are generally around 4 hectares. However, those smaller lots are in a different zone: the "Farmlet" zone, which permits lots of 4 hectares. The subject land is in the "Rural" zone and the boundary between the zones is Randell Road.
12 The subject land contains an existing dwelling in the northeast corner
of the site. (Refer to Attachment 1 - aerial photograph and Attachment 2 – site locality plan). The evidence does not include dimensions of the setback but scaling indicates the existing dwelling is set back approximately 120 metres from Randell Road and approximately 20 metres from the side boundary.
The subject land is mostly cleared and used for growing hay and for
grazing.
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Legislative framework
The subject land is located within the "Rural" zone of the Shire of
Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme).
15 The most relevant clause of TPS 2 is cl 5.10.3. This clause was
inserted into the Scheme by amendment No 127 in December 2004 to bring the Scheme into conformity with the Western Australian Planning Commission's Statement of Planning Policy No 2.5 - Agriculture and Rural Use Planning (SPP 2.5) which is discussed later in these reasons.
Clause 5.10.3 of TPS 2 addresses the issue of additional dwellings in the "Rural" zone and mirrors cl 5.2.1(vii) and cl 5.2.2(iv) of SPP 2.5.
Clause 5.10.3 of TPS 2 under the heading "Additional Dwellings in the Rural Zone" states that:
"(a) The Council may permit the construction of an additional
dwelling on a lot within the Rural Zone provided that:-
(i) the lot has a land area of not less than 4 hectares; and (ii) the total number of dwellings on the lot will not exceed two; and (iii) the additional dwelling is to be used for the purposes of a rural worker's dwelling as defined in Appendix 1 of the Scheme; and (iv) the additional dwelling is located within close proximity of the existing dwelling on the lot as determined by the Council and shares all services where practical. ... (c) The existence of more than one dwelling on a lot within the rural Zone shall not be considered as sufficient grounds for subdivision."
Clause 5.10.3(a) refers to "Rural Worker's Dwelling" which is defined in Appendix 1 - Interpretations of TPS 2 as follows:
"Rural Workers Dwelling - means a dwelling:
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(a)
which is on land upon which there is already erected a dwelling and which is occupied by persons engaged in any of the following uses on that same land: Cottage Industry; Feedlot; Fish Farming; Horticultural Pursuit; Pig Farming; Poultry Farming; Rural Industry or Rural Use; and
(b)
which can also accommodate family members involved in the operation of an agricultural enterprise on that land."
Issues for determination
The following two issues arise for determination in this review:
1)
whether the proposal conflicts with the requirements to be defined as a "Rural Worker's Dwelling"; and
2)
whether the proposal conflicts with the requirements of "close proximity" to the existing dwelling.
Whether the proposal conflicts with the requirements to be defined as a
"Rural Worker's Dwelling"
20 The respondent argued that the proposed additional dwelling does
not meet the requirements of a "Rural Worker's Dwelling" as defined in TPS 2. In summary the respondent's position was that the occupant was not a rural worker and that the use of the subject land was not for rural purposes.
21 The respondent acknowledged that the applicants had stated that the
proposed dwelling was to be used by their son to help run a rural use on the property. The respondent also acknowledged that the subject land "has historically been used for farming (grazing) although "Council records reveal that no rural uses have been approved on the subject land".
Mr Daymond, a planning officer working for the respondent, summarised the respondent's position in his witness statement:
"The purpose of a 'Rural Worker's Dwelling' as defined under the Scheme is to accommodate family members involved in the operation of an agricultural enterprise on that land. The current use of the land for grazing purposes is not considered to be an agricultural enterprise or justify the employment of a rural worker on the property."
[2008] WASAT 5
This surprising argument was confirmed during the hearing when Mr Daymond stated "running cattle is not a bone fide [sic] rural use."
24 The applicants provided evidence that the subject land was leased to
IH Hector and Company for the purposes of cattle breeding and grazing. The applicants also provided evidence that their son would be running the farm because Mr Evers was over 60 years of age and a type 1 diabetic and Mrs Evers suffers from severe rheumatoid arthritis and requires a wheelchair accessible house. Furthermore, the applicants argued that growing hay and managing cattle and farms requires active and regular rural work.
25 The photographic evidence and statements describing cattle grazing
on the land were not challenged by the respondent. During the hearing, it became apparent that the concern was that the land was leased for those purposes.
26 The definition for "rural use" in TPS 2 states that "rural use" "means
the use of land for any of the purposes set out hereunder …" and includes:
"(ii) the rearing or agistment of goats, sheep, cattle or beast of
burden;"
27 The Macquarie Concise Dictionary (4th ed) Macquarie Library Pty Ltd, Sydney, 2006 defines "agist" as "to take in and feed or pasture (livestock) for payment". Given this definition and the definition of "rural use" in TPS 2, the respondent fails to make a convincing argument that the subject land is not used for rural purposes and that therefore the additional dwelling is not a "Rural Worker's Dwelling".
28 The applicants argued that the subject land has been a farm for over
100 years. The respondent acknowledged that it had historically been
used for farming and that the use may have predated the Scheme.29 The Tribunal is satisfied that the subject land meets the requirements
of "rural use" and that the rural use requires rural work, and that the applicants, due to age and health, may reasonably need a family member to live onsite as a rural worker. On that basis, the Tribunal finds that the proposal will result in an additional dwelling onsite that meets the requirements to be classified as a "Rural Worker's Dwelling". If this was the only issue for the Tribunal to determine, then the applicants would succeed.
[2008] WASAT 5
Whether the proposal conflicts with the requirements of "close proximity" to the existing dwelling
30 The respondent argued that it had consistently required, as part of an
informal policy, that "Rural Worker's Dwellings" be located within 30 metres of the existing dwelling. Mr Daymond stated that the policy was applied prior to the inclusion of cl 5.10.3 into the Scheme. At that stage the respondent was considering applications for second dwellings by having due regard to the provisions of SPP 2.5.
31 SPP 2.5 uses the phrases "dwellings should generally be clustered in
one location" and "all services to the dwellings from the lot boundary (including access roads) are shared where practicable." Mr Daymond stated that the respondent had determined that a maximum separation of 30 metres was consistent with the intention of SPP 2.5.
32 After cl 5.10.3 was incorporated into the Scheme, Mr Daymond
stated that the respondent continued to apply a policy of requiring a maximum separation of 30 metres, even though the wording of cl 5.10.3 was slightly different to the wording of SPP 2.5. The 30 metre limit was considered to be consistent with the requirements of cl 5.10.3, which required the "Rural Worker's Dwelling" to be in "close proximity" to the existing dwelling and "shares all services where practical".
33 Mr Daymond conceded that the policy was informal and was not in
writing, and not been formally adopted as a Council Planning Policy. Nevertheless, the policy of a maximum separation of 30 metres had been consistently applied and only varied where undulating land, watercourses or heavy vegetation made the 30 metre limit impracticable.
34 Mr Daymond argued that although the 30 metre limit is not part of a
formal policy, it is a reasonable guide to interpret the requirements of cl 5.10.3. Furthermore, Mr Daymond observed that the maximum separation of 30 metres is an appropriate distance to avoid pressure for subsequent subdivision.
Mr Daymond noted that the applicants proposed a separation of 120 metres and had stated in their application letter, dated 30 May 2007, that the 120 metres would provide for future subdivision if the land was rezoned in the future to provide for 10 acre lots.
36 Mr Evers, in his evidence, stated that there was no intention to
subdivide. The proposed separation was logical because the lots on the opposite side of Randell Road were small 10 acre lots (4 hectares). If, in
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the future, land, including the subject lot, was rezoned to be the same as the land on the other side of Randell Road, then a smaller separation distance than 120 metres would prevent subdivision. The proposed separation was not to intend subdivision but rather to prevent an obstacle to future subdivision, if the locality was rezoned.
37 Mr Evers argued that the separation distance was relative. On a
smaller rural lot, 30 metres may be a reasonable distance for the dwellings to appear to be clustered together but on a larger rural lot, greater separation distances enable the same sense of being clustered together. Mr Evers argued that the two dwellings are clustered together in the northeast corner of the subject lot and that given the large size of the lot, the new dwelling would be in close proximity to the existing dwelling.
38 The issue for the Tribunal to determine is whether 120 metres may
be considered as "close proximity". The respondent argues that 30 metres is the maximum separation for dwellings to be in close proximity. The Tribunal agrees with the applicants that "close proximity" is a relative term and only has meaning in the context of the locality and the subject land. On that basis, the Tribunal finds the respondent's 30 metre limit to be an arbitrary distance.
39 Clause 5.10.3(a)(i) enables a second dwelling to be built on a rural
lot with a minimum size of 4 hectares. Relying on relative sizes alone is not a satisfactory method for determining whether two dwellings are located in close proximity to each other.
40 Another factor to consider is the intent for dwellings to be in "close
proximity". SPP 2.5 indicates that the purpose is to avoid future subdivision pressure and to minimise constraints on adjoining uses. In the context of this review, the second dwelling is located further within the lot and is unlikely to place any constraints on land uses on adjoining properties. However, there is a risk that in the future, the greater the separation distance the greater the potential for subdivision pressure. The existing dwelling is located close to the side boundary. The proposed location of the new dwelling will facilitate potential future subdivision. If the dwelling was located within 30 metres as required by the respondent, future subdivision would be very difficult.
41 As a final guide to an acceptable separation distance, TPS 2 requires
that the dwellings share services where practical. The proposal does not share services and/or access roads. There was no evidence presented to indicate that it was not practical to share services.
[2008] WASAT 5
42 Therefore, while the Tribunal agrees with the applicants that
separation distances are relative to the size of the subject lot, the Tribunal finds there are limits on the relativity. The dwellings should still be close enough to share services and access roads if practical and the separation distance should not be large enough to increase potential for future subdivision pressure.
43 The respondent's practice of using 30 metres as a maximum
separation distance appears to be arbitrary and it may be appropriate to approve a greater distance than 30 metres in this case because the existing dwelling is set back over 100 metres from Randell Road. The critical distance is the number of metres of separation that runs parallel to Randell Road (east-west separation) because this distance will determine the future setback from a common side boundary if future subdivision is proposed and it will also determine the width of the lot that would adjoin the existing side (east) boundary. The separation between the dwellings in terms of the distance that is perpendicular to Randell Road (north-south separation) is of less relevance and will have limited impact on the potential to share services (see Attachment No 1).
44 In this review, the Tribunal finds the proposal fails to meet the
requirements of "close proximity" because the services and access road are not shared and because the 120 metre separation distance (which includes a significant east–west separation) may create potential for future subdivision pressure.
| Orders |
The Tribunal makes the following orders:
1 The application for review is dismissed. 2 The decision of the Shire of Serpentine-Jarrahdale to refuse the application for a second dwelling on Lot 2 (No 193) Randell Road, Mardella is reaffirmed.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER
[2008] WASAT 5
Attachment 1
[2008] WASAT 5
Attachment 2 - Site plan
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