FERRARI and SHIRE OF WAROONA
[2007] WASAT 228
•4 SEPTEMBER 2007
FERRARI and SHIRE OF WAROONA [2007] WASAT 228
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 228 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:191/2007 | 15 AUGUST 2007 | |
| Coram: | MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 4/09/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is allowed Planning consent granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | PETER FERRARI SHIRE OF WAROONA |
Catchwords: | Town Planning Development Relocated house on residential lot Amenity of locality Application of policy Acceptable type of relocated dwelling Undesirable precedent |
Legislation: | Environmental Protection (Controlled Waste Regulations) 2001 (WA) Health (Asbestos Regulations) 1992 (WA) Residential Design Codes of Western Australia 2002 (WA), cl 3.4, cl 3.4.2, cl 3.8.1 Shire of Waroona Town Planning Scheme No 7 (Municipal District), cl 2.1, cl 2.4, cl 2.4.2(a), cl 2.4.3, cl 4.8.1, cl 6.1.1, cl 7.3.1, cl 8.3.2 |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Falc Pty Ltd and Others v State Planning Commission (1991) 5 WAR 522 Goldin & Anor v Minster for Transport (2002) 121 LGERA 101 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71 Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979). |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 24 April 2007 to refuse planning consent for the relocation of a dwelling from Lot 14 (No 20) Jackson Street, Waroona to Lot 118 (No 21) Jackson Street, Waroona is set aside and a decision is substituted that planning consent is granted subject to the following conditions:,(i) The development shall be carried out in accordance with plans prepared by LC Drafting and Associates (Project 07 68 Drgs 1 8 inclusive) dated 1 August 2007.,(ii) The removal and disposal of asbestos materials shall comply with the relevant provisions of the Health (Asbestos Regulations) 1992 (WA) and the Environmental Protection (Controlled Waste Regulations) 2001 (WA).,(iii) The new stumping shall be concealed from view on all sides of the dwelling.,(iv) The roof of the relocated dwelling shall be replaced and the external walls of the dwelling shall be reclad within 90 days of the date the dwelling being relocated to Lot 118 Jackson Street, Waroona.,(v) The floor level of the verandahs shall comply with cl 3.8.1 of the Residential Design Codes of Western Australia (2002).,(vi) An outdoor living area complying with cl 3.4.2 of the Residential Design Codes of Western Australia (2002) shall be provided. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FERRARI and SHIRE OF WAROONA [2007] WASAT 228 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 15 AUGUST 2007 DELIVERED : 4 SEPTEMBER 2007 FILE NO/S : DR 191 of 2007 BETWEEN : PETER FERRARI
- Applicant
AND
SHIRE OF WAROONA
Respondent
Catchwords:
Town Planning Development Relocated house on residential lot Amenity of locality Application of policy Acceptable type of relocated dwelling Undesirable precedent
Legislation:
Environmental Protection (Controlled Waste Regulations) 2001 (WA)
Health (Asbestos Regulations) 1992 (WA)
Residential Design Codes of Western Australia 2002 (WA), cl 3.4, cl 3.4.2, cl 3.8.1
(Page 2)
Shire of Waroona Town Planning Scheme No 7 (Municipal District), cl 2.1, cl 2.4, cl 2.4.2(a), cl 2.4.3, cl 4.8.1, cl 6.1.1, cl 7.3.1, cl 8.3.2
Result:
Application for review is allowed
Planning consent granted subject to conditions
Category: B
Representation:
Counsel:
Applicant : Selfrepresented with Mr Steve Coxall
Respondent : Ross Davidson (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Shire of Waroona
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Falc Pty Ltd and Others v State Planning Commission (1991) 5 WAR 522
Goldin & Anor v Minster for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71
Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979).
(Page 3)
Summary of Tribunal's decision
1 On 5 April 2007 the Shire of Waroona received an application for the relocation of a dwelling from Lot 14 (No 20) Jackson Street to Lot 118 (No 21) Jackson Street in the Waroona townsite. The Shire refused the application on the grounds that the development did not comply with the Shire of Waroona's Planning and Development Services Policy Manual, Policy 9.0 – Relocated Dwellings which precludes relocated dwellings within the boundaries of any gazetted townsite, and that the development would create an undesirable precedent for relocated dwellings in the townsite.
2 In regard to the merits of the case the Tribunal found that the location of the proposed dwelling, to the rear of an existing house which will be retained and upgraded, ensured that the development would not adversely affect the amenity of the locality. In addition, the Tribunal found that the proposed dwelling complied with the acceptable development criteria of the Shire of Waroona's Planning and Development Services Policy Manual, Policy 9.0 – Relocated Dwellings. The Tribunal therefore determined it would be appropriate in this case to depart from the provision of the policy precluding relocated dwellings within the boundaries of the Waroona townsite.
3 In regard to precedent the Tribunal determined that the proposed development was unobjectionable and that the adverse precedent argument is not a relevant consideration in this case, as each subsequent case will be considered and determined on its own merits.
4 The application for review was allowed and planning consent granted under the Shire of Waroona Town Planning Scheme No 7.
Application
5 On 5 April 2007 the Shire of Waroona (Shire, Council or respondent) received an application for the relocation of a dwelling from Lot 14 (No 20) Jackson Street, Waroona to Lot 118 (No 21) Jackson Street, Waroona (subject land).
6 The subject land comprises a lot of 860 square metres on the southern side of Jackson Street, one lot to the west of the intersection with Sutton Street. An existing dwelling located towards the front of the lot is to be retained and upgraded. It is proposed that the subject land will be strata-titled with the dwelling the subject of this review to be located on the rear, and southern portion, of the lot and accessed by a driveway along the western side of the lot.
(Page 4)
7 The footprint of the dwelling comprises a rectangle of approximately 80 square metres of internal space under a pitched roof. The internal space comprises a lounge/dining area, kitchen, three bedrooms, a bathroom and a laundry. Decked verandas 2.3 metres wide will be provided along both the northern and southern sides of the dwelling, and a double carport will be provided on the western side of the structure. Externally the roof and the wall cladding of the dwelling will be replaced with new materials.
8 The boundary setbacks of the structure, including verandas and carport, will be 1.52 metres from the western boundary, and 1.5 metres from both the southern and eastern boundaries of the lot.
Council Decision
9 The Council, at its meeting held on 24 April 2007, refused the application for the following reasons:
1. The subject site for the proposed relocated dwelling lies in the Gazetted Townsite of Waroona and therefore contradicts the Shire of Waroona's Planning and Development Services Policy Manual, Policy 9.0 Relocated Dwellings: and
2. Approval of the dwelling would create an undesirable precedent for relocated dwellings in the townsites.
10 On the 17 May 2007, Mr Ferrari (applicant), applied to the State Administrative Tribunal seeking a review of the Shire's decision.
Planning Provisions
11 The general objectives of the Shire of Waroona Town Planning Scheme No 7 (Municipal District) (TPS 7) are established by cl 2.1. These seek to promote the orderly development of the District by making suitable provisions for zoning, land uses and reserves which will, among a number of other aspirations, "provide for adequate residential, community and commercial uses within the Waroona Townsite and its environs, and in other urbanised areas".
12 In order to achieve the objectives of the Scheme, the Council may, under cl 2.4 of TPS 7, make Town Planning Scheme Policies relating to
(Page 5)
- parts or all of the Scheme area and relating to one or more of the aspects of the control of development.
13 Clause 4.8.1 of TPS 7 establishes Council's objective for the residential areas of Waroona townsite which is to ensure these areas develop "in a manner which will provide adequately for the variety of residential needs anticipated in the reasonably foreseeable future, consistent with the best use of available land resources and a high level of urban amenity. Council's policies will therefore be to:
• protect by appropriate zoning, land considered to be adequate and suitable for Waroona's anticipated residential needs;
• adopt land use control and Residential Planning Codes which will permit development of a range of housing types.
• achieve maximum economic use of the urban land resource by encouraging development of vacant subdivided lots and other serviced unsubdivided lots and other serviced unsubdivided areas;
• require that residential development attains a satisfactory standard of urban amenity through siting, design and construction."
14 In determining an application for planning consent under cl 8.3.2 the council, having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is reserved, zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, and to the orderly and proper planning of the locality, may refuse to approve any application for planning consent or may grant its approval unconditionally or subject to such conditions as it thinks fit.
15 The subject land is zoned Urban 4 - Residential with a permitted density of R12.5/R30 in TPS 7.
16 TPS 7 provides at "Part 6.1 - Development of Land", cl 6.1.1:
"Subject to Clause 6.1.2, a person shall not commence or carry out development on any land zoned or eserved by the Scheme without first having applied for and obtained the Planning Consent of the Council
(Page 6)
- in accordance with the provision of the Scheme."
17 The application falls within the definition of "Grouped Dwelling", which is defined under the Residential Design Codes of Western Australia(2002) (Codes) as:
"Grouped Dwelling
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property".
18 A Group Dwelling is an "AA" use within the Urban 4 – Residential; that is a use the Shire may permit at its discretion.
19 At the hearing the respondent advised the Tribunal that the Shire had resolved to initiate an amendment to TPS 7 seeking to remove the current R12.5/R30 split density coding in the locality of the subject site and replace it with an R12.5 coding. The Tribunal was informed that the documentation for the proposed amendment is currently under preparation and the amendment documentation is therefore yet to be endorsed by the Council prior to referral to the Western Australian Planning Commission.
The Issues
20 The respondent submitted that the substantive issues before the Tribunal in regard to this matter were:
• whether the relocated dwelling would compromise the amenity of the locality, and
• whether the proposed development complies with Policy 9.0 – Relocated Dwelling.
21 The applicant did not challenge these issues.
22 Arising from the proposal to amend to the density coding of the locality was the issue of:
• whether the proposed amendment constituted a "seriously entertained planning proposal".
(Page 7)
23 Finally arising from the second reason for refusal was the further issue:
• if there was departure from the policy whether this would create an undesirable precedent.
24 The Tribunal will deal with each issue in turn.
Whether the relocated dwelling would compromise the amenity of the locality
25 In dealing with the amenity of the locality the respondent submitted that while the existing dwellings on the southern side of Jackson Street between Thatcher Street and Sutton Street comprised a mix of masonry and framed construction, the currently approved six dwellings to be built on Lot 14 (20) Jackson Street, directly across the street, would comprise masonry construction. In addition, the northern side of Jackson Street to the east of Sutton Street fell within a "Special Design Precinct" under TPS 7, where under cl 7.3.1 new dwellings, alterations and additions were required to have "all external walls and party walls … constructed of brick, brick veneer, masonry or other materials approved by Council".
26 It was accepted by the parties that the subject land did not fall within the Special Design Precinct. Mr Coxall, for the applicant, argued that while he supported the need for a high standard of new development in Waroona he did not believe that this necessarily required masonry construction.
27 In regard to the impacts of the proposed dwelling on the amenity of the locality the respondent agreed that the fact that the dwelling would be located behind an existing dwelling would mitigate the potential impacts on the amenity of the locality. Such impacts, it was conceded, would be further mediated should the existing dwelling at the front of the subject land be upgraded as part of the development.
28 While it was agreed between the parties that the current application for review did not include any proposed work to the existing dwelling on the subject land the applicant advised that it was intended that the overall development would include the upgrading of this dwelling. The revised site plan submitted to the Tribunal at the hearing indicated the addition of verandahs and a carport to this dwelling.
29 In this context, any views of the development the subject of this review from the street will be oblique, limited, and seen from some distance. The Tribunal therefore finds that the location of the proposed dwelling behind an
(Page 8)
- existing dwelling some considerable distance back from the street will ensure that the amenity of the locality would not be adversely affected by the development.
Whether the proposed development complies with Policy 9.0 ‘Relocated Dwellings'
30 The respondent advised that it perceived that there was an issue of condition and appearance with relocated dwellings being brought into the municipal area and as a consequence Policy 9.0 – Relocated Dwellings (Policy 9.0)was initially adopted. This occurred in September 2005.
31 The respondent further submitted that:
"While generally accepting of relocated dwellings, in 2006 Council became concerned with the number of relocated dwellings within residential areas that were not meeting a high standard of appearance and condition. As a consequence, Council directed the officers to prepare a modification to Policy No 9.0 to indicate that relocated dwellings within townsites would not be approved by Council."
32 The resolution to modify Policy 9.0 was taken at the ordinary meeting of the council held in November 2006. The Shire carried out a public advertising period on the proposed amendment. Having regard to public submissions received, council resolved to finally adopt the modification to Policy 9.0 in accordance with cl 2.4.2(a) of the Scheme on 27 February 2007.
33 The amendment reads as follows:
"Council will not approve relocated dwellings within the boundaries of any gazetted townsite".
34 The intent of the Policy 9.0 is set out in the background to the policy which states:
"In order to ensure that the existing standard of development and related level of amenity currently enjoyed within the Shire is not compromised it is essential controls are put in place to ensure that any relocated dwelling meets a high standard of appearance and condition."
35 This intent is reflected in the objectives of Policy 9.0, which include the following:
(Page 9)
- "• To provide clear standards as to what constitutes an acceptable type of relocated dwelling: and
• To ensure the style, materials, condition, and design of a relocated dwelling is in keeping with the character of the area within which the dwelling is to be sited."
36 The policy, at cl 9.5.4, sets out the parameters for acceptable development. This includes provisions covering:
"• The submission of all details as required in Section 9.5.2 together with the application and appropriate fee.
• The dwelling meets the 'Class 1 building' requirements of the Building Code of Australia, including the energy efficiency requirements.
• The dwelling contains at least one (1) bedroom separate from the other rooms in the dwelling, a lounge/dining area, a kitchen and a separate toilet, bathroom and laundry facility.
• The design, scale, standard and appearance of the proposed building is compatible with the type of buildings which exist in the locality in which it is to be located.
• The condition and appearance of the roof and wall clad materials are to be in as new condition, or are proposed to be painted or rendered and repaired to bring up to the standard of a new dwelling.
• The dwelling's visual appearance is to be enhanced by the addition of verandas (if required) or through screening and/or landscaping.
• The dwelling is to be located (setback) on the site so as to minimise the visual impact from public areas and neighbouring properties.
• The dwelling does not contain asbestos."
37 The respondent argued that the information provided with the original application, which was limited to a site plan and general notes on the scope of work, meant that:
(Page 10)
- • The Shire did not have all the relevant information to assess the proposal.
• The fact that no floor plan was provided meant that while the dwelling to be relocated was inspected by Shire staff it was not possible to definitively establish if it complied with the room requirements of the policy.
• It was difficult to establish precisely what roof and wall finishes would be applied and whether existing windows and doors would be retained or replaced.
38 The additional drawings provided to the Tribunal at the hearing augmented the original site plan and general notes with an amended site plan, plans, elevations and sections. The Tribunal holds the view that the proposal as amended remains in substance the same proposal (Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71, Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979). At the hearing the respondent conceded that the proposed dwelling appeared to comply with the acceptable development criteria of the policy.
39 In appears that the Shire had not formally assessed the application against the provisions of the Codes or the acceptable development criteria of Policy 9.0 and the application was rejected simply on the basis that it did not comply with the recent policy amendment precluding relocated dwellings within the boundaries of gazetted townsites.
40 Based on the evidence at the hearing, the Tribunal finds that the proposed dwelling meets the Acceptable Development criteria of the policy.
41 The Tribunal acknowledges that the respondent has prepared and adopted Policy 9.0, and a subsequent amendment to the policy, to provide parameters for decision-making in relation to the relocation of dwellings in the Shire. However, policies should not be applied so inflexibly that where a variance may be appropriate it is simply rejected. As set out by Nicholson J in Falc Pty Ltd and Others v State Planning Commission (1991) 5 WAR 522, "the function of the Tribunal is to have regard to that policy but to exercise its discretion in relation to it in the light of the evidence in the particular case." Although His Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal.
(Page 11)
42 Clause 2.4.3 of TPS 7 specifically states that "[a] Town Planning Policy shall not bind the Council in respect of any application for Planning Consent".
43 On the evidence presented in this case the Tribunal determines that the proposed dwelling meets the objectives of Policy 9.0 and is consistent with the acceptable development provisions of the same policy. The Tribunal therefore finds that in this case it is appropriate to consider departing from the policy requirement of Policy 9.0 precluding relocated dwellings in gazetted townsites.
44 The Tribunal also finds that the proposed dwelling complies with the relevant provisions of the Codes, with the possible exceptions of Element 8 - Visual Privacy and Element 3 – Open Space and complies with cl 4.8.1 of TPS 7.
Whether proposed amendment is a "seriously entertained proposal"
45 In regard to the proposed amendment to the density coding in the locality in the matter of Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 the Tribunal found four principal criteria which should be utilised to determine the weight which should appropriately be given to a draft amendment to a planning instrument in a planning assessment or review. These criteria are:
"(1) The degree to which the draft addresses the specific application.
(2) The degree to which the draft is based on sound town planning principles.
(3) The degree to which its ultimate approval could be regarded as "certain".
(4) The degree to which its ultimate approval could be regarded as 'imminent'."
46 While the proposed amendment does address the specific application, a judgment on the criteria of sound town planning principles is not yet possible, and the draft amendment clearly fails the tests of both certainty and imminence. Therefore, the Tribunal finds that the proposed amendment to the density coding in the locality should not be regarded as a "seriously entertained" planning proposal.
(Page 12)
Whether the granting of planning consent would create an undesirable precedent
47 Precedent was considered by the Tribunal, in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, in Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 at [71] [75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin & Anor v Minster for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
"(1) That the proposed development or subdivision is not in itself unobjectionable; and
(2) That there is more than a mere chance or possibility that there may be later undistinguishable applications."
For precedent to be a relevant factor both tests must be satisfied. In this instance, for reasons discussed earlier, the proposed development is unobjectionable. Therefore, the adverse precedent argument is not a relevant consideration in this case, as each subsequent case will be considered and determined on its own merits, and the review should be allowed
Conditions
48 The respondent, in its submissions, requested that should the Tribunal be of a mind to allow the application for review that reasonable conditions and time limits be imposed on any approval to ensure the development complied with the objectives of the Policy 9.0.
49 At the hearing the Shire sought conditions addressing the following matters:
• The removal and disposal of asbestos;
• The concealment of stumping on all sides; and
• A timeframe for re-roofing and recladding of the structure.
(Page 13)
50 Such conditions were acceptable to the applicant.
51 The Tribunal raised the issue of compliance with Element 8 Visual Privacy of the Codes. The applicant advised that the structure could be amended to comply with this provision. A final matter was that the site plan did not specifically designate an outdoor living area as required by cl 3.4 of the Codes.
52 The Tribunal therefore duly imposes conditions addressing these matters.
Orders
53 For the above reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 24 April 2007 to refuse planning consent for the relocation of a dwelling from Lot 14 (No 20) Jackson Street, Waroona to Lot 118 (No 21) Jackson Street, Waroona is set aside and a decision is substituted that planning consent is granted subject to the following conditions:
(i) The development shall be carried out in accordance with plans prepared by LC Drafting and Associates (Project 07 68 Drgs 1 8 inclusive) dated 1 August 2007.
(ii) The removal and disposal of asbestos materials shall comply with the relevant provisions of the Health (Asbestos Regulations) 1992 (WA) and the Environmental Protection (Controlled Waste Regulations)2001 (WA).
(iii) The new stumping shall be concealed from view on all sides of the dwelling.
(iv) The roof of the relocated dwelling shall be replaced and the external walls of the dwelling shall be reclad within 90 days of the date the dwelling being relocated to Lot 118 Jackson Street, Waroona.
- (v) The floor level of the verandahs shall comply with cl 3.8.1 of the Residential Design Codes of Western Australia(2002).
(vi) An outdoor living area complying with cl 3.4.2 of the Residential Design Codes of Western Australia (2002) shall be provided.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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