Grierson and Shire Of Chittering
[2007] WASAT 146
•7 JUNE 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GRIERSON and SHIRE OF CHITTERING [2007] WASAT 146
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 JUNE 2007
FILE NO/S: DR 109 of 2007
BETWEEN: LACHLAN GRIERSON
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Town planning Application for planning approval Existing building envelope Proposed building envelope Nature of the objector's submission Construction of a sand pad Likely amenity impacts resulting from relocation of the building envelope
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Chittering Town Planning Scheme No 6, cl 1.6, cl 4.2, cl 5.8, cl 5.8.2, cl 10.2
State Administrative Tribunal Act 2004 (WA), s 29(3)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Azhar Awang (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Chittering
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Shire of Chittering to refuse the relocation of an existing building envelope on Lot 214 Leschenaultia Drive, Chittering.
The Tribunal had regard to the arguments of both parties, the background to the matter, the relevant provisions of the town planning scheme, the size and location of both the existing and proposed building envelopes, the contents of an objector's submission against the proposal and the likely amenity impacts resulting from the proposal.
The Tribunal determined that, subject to additional tree planting being required as a condition of planning approval for a residence on the subject land, the relocation of the building envelope was justified in the circumstances of this case.
The application for review was upheld.
Introduction
The application for review, dated 16 March 2007, was lodged by Mr Lachlan Grierson (applicant) against a decision of the Shire of Chittering (respondent or Shire) on 21 February 2007 to refuse an application for a water tank and building envelope relocation at Lot 214 Leschenaultia Drive, Chittering.
The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
The reasons for refusal were:
"That Council does not grant Planning Approval to relocate the Building Envelope at Lot 214 (RN 131) Leschenaultia Drive, Chittering as depicted on the attached plan (Ref No 9532‑59) as:
1.the objection received from an adjoining property owner clearly states that moving the building envelope closer to their dwelling is unacceptable to them and will negatively impact on what they believe is the spirit of this rural subdivision;
2.the owners of Lot 214 purchased the lot with a clearly defined Building envelope."
Subject land
The subject land can be described as Lot 214 Leschenaultia Drive, Chittering, on Certificate of Title Volume 2162 Folio 126, on Plan No 23456.
It has an area of 2.1045 hectares with a frontage of some 113 metres, a rear boundary of some 129 metres and side boundaries of some 168 metres and 172 metres. There is a building envelope in a quadrilateral shape of approximately 4250 square metres.
The land rises slightly towards the rear and there are some large and medium size Eucalypts on the site with a relatively clear under‑storey. There is the occasional "cycad" and "blackboy" interspersed between the trees.
The legislative framework
The subject land is zoned "Rural Residential" in the Shire of Chittering Town Planning Scheme No 6 (TPS 6 or Scheme).
Respondent's position
The position of the respondent is outlined in the witness statement dated 26 April 2007 of Mr Azhar Awang, a qualified town planner and Manager Planning/Shire Planner. He argues:
(a)The proposed relocation of the building envelope will have an adverse effect on the adjoining landowner's property, due to it being closer than was originally endorsed in the approved development plan.
(b)The submission from the adjoining landowner has expressed concern at the proposed relocation of the building envelope.
(c)The application for planning approval to relocate the building envelope should be refused.
The applicant's position
The position of the applicant is outlined in the witness statement, dated 26 April 2007, of Mr Lachlan Neil Grierson. He argues:
(a)The proposed relocation of the building envelope will not have an adverse impact on the adjoining property owners.
(b)If the Council decision is not overturned it will have an adverse impact on the environment of the lot, with the unnecessary removal of up to 60 trees.
Planning issues
The principal planning issue is:
(a)Is the relocation of the building envelope justified in the circumstances of this case?
Assessment of proposal
Background
The background to the proposal can be broadly summarised:
(a)The applicant purchased the property in 2004 with the intention of building a residence.
(b)In that same year a consultancy firm (Whelans) conducted a site survey and laid out the position of the building envelope.
(c)The survey information was provided to Rammed Earth Homes in 2006 and a building contract signed.
(d)Building plans were submitted to the respondent in November 2006, and site works commenced prior to the agreed commencement date of mid‑January 2007.
(e)The site works included the clearing of the building site, laying the sand pad and cutting a works trench for electrical and telephone cabling.
(f)Building plans were submitted to the Shire in January 2007. They subsequently advised that the building envelope was incorrectly located.
(g)On 18 January 2007 a planning application was lodged with the respondent seeking approval for the relocation of the building envelope.
(h)Following notification to adjoining owners, three submissions were received.
(i)Of the three submissions, two were in favour (from Lots 207 and 213) and there was one objection (from Lot 208).
(j)The planning application was considered by Council on 21 February 2007 and a refusal issued on 12 March 2007.
Statutory provisions
The "aims" of TPS 6 are outlined in cl 1.6. They include:
" …
(f)To provide for rural residential development in controlled settlement areas;
(g)To protect and improve areas of remnant vegetation and, waterways from further degradation;
… "
The "objectives" of the various zones are outlined in cl 4.2 of TPS 6. They include the objectives in the "Rural Residential" zone:
"4.2.6.1Objectives
To designate areas where rural residential developments can be accommodated without detriment to the environment or the rural character of the area.
To meet the demand for a rural lifestyle on small lots, generally in excess of 5000 [square metres].
To maintain and enhance the rural character and amenity of the locality."
The "Development Provisions" for the "Rural Residential" zone are outlined in cl 5.8 of the Scheme. They include:
"5.8.2Building Envelopes/Setbacks
Development will only be permitted in the areas identified as building envelopes provided that Council may vary the boundaries of such envelopes if it is satisfied that such variation is desirable and will not detrimentally affect the objective for the Zone or the amenity of the area generally.
Clearing of remnant vegetation for the construction of buildings within the defined envelope shall not exceed 2000 [square metres] without prior approval of Council.
If no building envelopes are identified on the Development Plan, then the following setbacks from the cadastral boundaries shall be applied:
Front
•Lots fronting a Highway shall be a minimum of 100 metres.
•Lots fronting a Major Road shall be a minimum of 50 metres.
•Lots fronting a subdivisional road shall be a minimum of 20 metres
Side15 metres
Rear20 metres
If the site is to have a sand pad for the proposed dwelling greater than 0.5 metres above Natural Ground Level, then for every 0.5 metres of height above natural ground level, setback distances shall be increased by 2 metres.
5.8.3Planning Approval
Planning approval will be required for all residential development in the rural residential zone. In considering an application for planning approval for a proposed development (including additions and alterations to existing development) the Council shall have regard to the following:
…
(c)setback and location of the building on its lot;
…
(e)relationship to surrounding development;
…
All earthworks and construction shall be carried out in a manner which minimises disturbance of vegetation … "
The matters to be considered by local government when assessing an application for planning approval are contained within cl 10.2 of TPS 6. They include:
" …
(m)the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
(o)the preservation of the amenity of the locality;
…
(x)whether the proposal is likely to cause soil erosion or land degradation;
…
(z)any relevant submissions received on the application."
The building envelopes
The existing and proposed building envelopes are shown on Plan B attached to the witness statement of the applicant.
The existing building envelope is in the shape of a quadrilateral with its southern boundary measuring 85 metres long and is set back some 50 metres from Leschenaultia Drive. It has a western boundary measuring 35 metres and is set back 15 metres from the side boundary of the lot and an eastern boundary measuring 65 metres and is set back 20 metres from the side boundary of the lot. The northern boundary is some 95 metres long and is angled to a degree where it is 50 metres from the rear boundary of the lot at the closest point, and some 84 metres from the rear boundary at its furthest point.
The proposed building envelope is rectangular in shape and has been pushed further towards the rear of the lot.
It measures approximately 70 metres by 38 metres with the longest east‑west boundaries being set back some 82 metres to 92 metres from Leschenaultia Drive and some 42 metres to 48 metres from the rear boundary to the lot. The north‑south boundaries of the proposed building envelope vary from some 15 metres to 18 metres from the western boundary of the lot, to some 35 metres to 43 metres from the eastern boundary of the lot.
The overall effect of the proposed relocation is that approximately one‑third of the proposed building envelope falls within the existing building envelope, with the remaining two‑thirds falling outside it and located closer to the rear boundary of the lot.
A further effect is that the existing building envelope measures some 4250 square metres, whereas the proposed building envelope, at some 2660 square metres, is only some 62.6% of the size of the existing envelope.
An additional point of relevance is that the boundary of the existing building envelope on the adjoining Lot 215 to the west appears to be some 50 metres from the rear boundary of that lot. However, the northern boundary of the existing building envelope on the adjoining Lot 213 to the east appears to be some 25 metres only from the rear boundary of that lot. In other words the boundaries of the building envelopes do tend to vary from one lot to the other.
This variation in the position of building envelopes relative to the rear lot boundary is also shown on those nearby lots fronting Blue Plains Road (Lots 207, 208 and 209). In these examples, which include the objector's Lot 208, the distance of the building envelope from its rear boundary is only some 15 metres to 20 metres.
The nature of the objector's submission
The nature of the objector's submission, and the reporting officer's comments on that submission, were outlined in a report dated 7 February 2007 to Council.
The objector's submission argued that:
(a)The existing building envelope is generous.
(b)The proposed building envelope relocation will bring the applicant's house closer to the adjoining property.
(c)The proposal contravenes the spirit of the legislation.
In the officer's response it is argued:
(a)Although the proposed building envelope is some 10 metres closer to the rear boundary of the subject land, which adjoins the objector's Lot 208, it is still some 40 metres from the rear boundary. This exceeds the 20 metre rear setback required by TPS 6 in a "Rural Residential" zone in the absence of a building envelope.
(b)The affected landowner (objector) has a building envelope that is set back 20 metres from the applicant's rear boundary, which means that the total separation distance between the two building envelopes is some 60 metres.
(c)As the proposed residence on the subject land will be 10 metres inside the rear boundary of the proposed building envelope, it will be 50 metres from the rear property boundary.
(d)The proposal does not contravene the spirit of the subdivision as it does not alter the overall subdivision of the area. Only a change to the building envelope is contemplated, and Council has the discretion to make such a change under cl 5.8.2 of the Scheme.
(e)The proposed building envelope is smaller than the original building envelope, and the maximum area allowed to be cleared is 2000 square metres.
The matter of amenity
In the witness statement of the applicant he explains how the existing sand pad was incorrectly located:
"36.I believe Whelans made an error with our survey, which wasn't made known to us, until raised by the Shire two months after it received our site plans for approval."
In his response of 3 May 2007 to the witness statement of Mr Awang the applicant addresses the implications of the existing sand pad on the removal of trees:
"7d
…it has required the removal of a minimal number of no more than 20 trees."
Again, in the same response, he addresses the repercussions of reverting to the existing building envelope in this way:
"7b
Furthermore, I believe, it would be to the 'detriment to the environment or rural character of [the] area' if I am required to relocate our residential building within the existing building envelope. As previously stated in this response I estimate it will require the removal of an additional 40‑60 mature trees, depending on the new location."
A further relevant matter relating to the amenity of the adjoining neighbour was raised in the applicant's witness statement:
"26.The contour survey also indicates an incline on our property in the direction of the affected owners' adjoining boundary and a decline towards their dwelling. This further highlights the restricted visibility between the two dwellings. (See Plan D & supporting Photo 7.)"
In the view of the Tribunal, it is not possible from the evidence available to confirm or dispute the claim made by the applicant that some 20 trees only were removed to allow the construction of the sand pad. However, from an on site inspection by Senior Sessional Member Graham the assessment would seem to be erring on the low side.
What the Tribunal does accept though is that, from the sand pad itself, there is an upward incline towards the rear of the property and then a gradual decline towards the adjoining neighbour's residence. This does assist in reducing the sight lines, and the resulting amenity impacts, between the two adjoining properties.
Conclusions
The application for review was lodged against a decision of the Shire to refuse the relocation of an existing building envelope on Lot 214 Leschenaultia Drive, Chittering.
In undertaking this review the Tribunal has had regard to the respective arguments of the parties, the background to the matter, the relevant provisions of the Scheme, the size and location of the existing and proposed building envelopes, the nature of an objector's submission against the proposal and the likely amenity impacts resulting from the proposal.
In this particular case the applicant has acknowledged that a mistake was made by locating the building envelope in the wrong position on the site, and that trees were demolished to make way for a sand pad that has now been constructed.
In examining this matter it is clear that lot sizes in the locality are relatively large at around 2 hectares to 4 hectares, and that the possibility does exist to relocate a building envelope if justified.
The opportunity to do this is contemplated by the provisions of cl 5.8.2 of the Scheme which allows a variation to the building envelope providing it would not detrimentally affect the objectives of the zone, or the amenity of the area generally.
What has happened in this case is that a sand pad has already been constructed and positioned within a proposed building envelope which, although reduced significantly in size from the existing building envelope, has been pushed further towards the rear boundary of the subject land.
The net effect of this shift in location is that the northern boundary of the proposed building envelope would be some 42 metres to 48 metres from the rear boundary, whereas the closest point of the existing building envelope is 50 metres from the rear boundary and 84 metres at its furthest point.
However, if a home was to be built within the proposed building envelope the distance between it and the objector's residence on the adjoining Lot 208 at the rear would exceed 100 metres, and the contours are such that it would not easily be possible to view one house from the other.
Of some concern though is the fact that a number of trees have been removed closer to the rear boundary of the subject land than would otherwise be the case. This has occurred from the incorrect positioning of the sand pad within the proposed building envelope.
In order to correct this situation any planning approval issued for a residence on the subject land should include the planting of 30 native trees of a height of 1.5 metres to 2.0 metres and positioned between the rear boundary of the residence and the rear boundary of the subject land. This should eventually increase the density of vegetation in a line of sight between the existing residence on Lot 208 and the proposed residence on the subject land.
In the view of the Tribunal, the circumstances in this case are such that the relocation of the building envelope, as sought by the applicant, is justified.
Orders
For the foregoing reasons the orders of the Tribunal are:
1.The application for review is upheld.
2.That in accordance with s 29(3) of the State Administrative Tribunal Act 2004 (WA), and in the event that planning approval is issued for a residence on the subject land, a condition be imposed by the respondent requiring the planting of 30 native trees of a type and variety acceptable to them, and positioned as detailed in [46] of this review.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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