Hewison and Shire Of Augusta-Margaret River
[2014] WASAT 62
•30 MAY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HEWISON and SHIRE OF AUGUSTA-MARGARET RIVER [2014] WASAT 62
MEMBER: MS R MOORE (MEMBER)
HEARD: 15 APRIL 2014
DELIVERED : 30 MAY 2014
FILE NO/S: DR 462 of 2013
BETWEEN: JOLENE HEWISON
Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent
Catchwords:
Town planning Development application for holiday house Short stay accommodation Grouped dwelling Shire of AugustaMargaret River Local Planning Policy 25, Short Stay Use, Grouped Dwellings Location 560 metres from Margaret River Town Centre zone Outside of the 300 metre 'Town Catchment' Whether proposed use is consistent with purpose of Residential zone and objectives of local planning strategy Orderly and proper planning Adverse planning precedent
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Augusta-Margaret River Local Planning Scheme No 1, cl 1.7, cl 2.2.1, cl 2.3, cl 2.3.1, cl 2.4, cl 4.2.4.1, cl 4.3, cl 5.26, cl 9.4, cl 9.4.3, cl 10.2, Sch 1
Result:
Application for review dismissed
Development approval refused
Summary of Tribunal's decision:
These proceedings involved an application for retrospective planning approval to use as short stay accommodation a grouped dwelling at No 23 Settlers Retreat, Margaret River.
The Tribunal found that the proposal had the potential to adversely impact on neighbouring properties and the residential character of the area, as well as the potential to reduce the number, and type, of dwellings available for permanent occupation within the Margaret River settlement area.
The proposed use was not consistent with orderly and proper planning as it was not consistent with the purpose of the Residential zone under the Shire of Augusta-Margaret River Local Planning Scheme No 1 or the objectives regarding tourism and residential land use in the Shire of AugustaMargaret River Local Planning Strategy, nor did it satisfy the criteria for short stay use of a grouped dwelling set out in the local planning policy of the Shire of AugustaMargaret River.
The Tribunal also found that the application warranted refusal because it would set an adverse planning precedent as the cumulative impacts of similar developments in the low density residential area outside of the 300 metre 'Town Catchment' (that is, 300 metres from the Town Centre zone) would undermine the purpose of the Residential zone.
The application for review was dismissed and the Shire's decision to refuse the development applications affirmed.
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Ms A Englert (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: Shire of AugustaMargaret River
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Goldin v Minister for Transport (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Ms Jolene Hewison (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of AugustaMargaret River (Shire or respondent) made on 27 November 2014 to refuse to grant development approval for a holiday house at No 23 (Lot 1) Settlers Retreat, Margaret River (site or subject site).
A final hearing (which included a view of the site) was held at the Shire's offices on Tuesday, 15 April 2014. The applicant was selfrepresented and the respondent was represented by Ms Amelia Englert, a Shire employee.
Site
The site is a grouped dwelling on one of two survey strata lots with common property which includes a shared driveway used to access both lots. The site has an area of 501 m2 and contains a two storey dwelling constructed circa 2009.
The ground floor of the dwelling has a footprint of approximately 155 m2 and contains a bedroom, bathroom, office, living area, kitchen and meals area that opens on to an outdoor living area to the north. The upper floor is approximately 70 m2 in area and contains a bedroom, bathroom, ensuite and balcony to the north.
The site adjoins a vegetated Shire reserve to the west, the rear of a property to the south, the second grouped dwelling to the east, and a property to the north (No 74 Settlers Retreat). The dwelling on the site has its ground floor entertaining area and upper floor balcony facing north towards No 74 Settlers Retreat. The upper floor balcony and the ground floor outdoor living are setback approximately 8 metres from the boundary of No 74 Settlers Retreat. The Tribunal was told that the outdoor living area of No 74 is located at the rear of the property and that the occupants of No 74 currently access their property via the driveway constructed for the use of the subject site. Settlers Retreat is a no through road accessed from Willmott Avenue and River Heights Road.
Planning framework
The site is zoned 'Residential' with a residential density coding of R17.5 under the Shire of Augusta-Margaret River Local Planning Scheme No 1 (LPS 1 or Scheme).
Clause 1.7 of LPS 1 refers to definitions and states that:
1.7.1Unless the context requires otherwise, words and expressions … have the same meaning as they have:
(a) in the Planning and Development Act 2004; or
(b) if they are not defined in that Act:
(i)… in Schedule 1; or
(ii)in the Residential Design Codes.
1.7.2…
(a)in the case of a residential development, the definition in the Residential Design Codes prevails[.]
Clause 2.2.1 of LPS 1 states that a local government may prepare a local planning policy, and cl 2.3.1 of LPS 1 provides that if a local planning policy is inconsistent with the Scheme, the Scheme prevails. A local planning policy is not a part of the Scheme and does not bind the local government in respect of any application for planning approval but the local government is to have due regard to the provisions of the policy and the objectives which the policy is designed to achieve before making its determination.
The 'Zoning Table' in cl 4.3 of LPS 1 provides that both a 'Holiday House' and a 'Residential Building' are 'A' uses. An 'A' use means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with cl 9.4 of LPS 1. The local government is also to have due regard to the matters set out in cl 10.2 of LPS 1.
Clause 5.26 of LPS 1 'Development of holiday houses' states:
5.26.1Applications for Planning approval for holiday houses will be required to demonstrate to the satisfaction of the local government that a holiday house activity will be so managed as to ensure that it will not cause nuisance or annoyance to the owners of adjoining or nearby properties.
5.26.2The Local government may require the provision of additional parking areas to be provided onsite over and above those required for residential uses under the Residential Design Codes.
5.26.3Unless the local government determines otherwise, any approval granted for such a development will be granted for a limited period of one year renewable by way of further application towards the expiration of that period. If the local government has received complaints regarding the holiday house activity, a further approval may not be granted.
5.26.4Holiday houses are generally considered appropriate within coastal communities of the local government area or within close proximity to major tourist attractions but are not considered to be appropriate within the residential districts of inland settlements.
Clause 9.4.1 of LPS 1 requires the local government to not grant planning approval for an 'A' use unless notice is given in accordance with cl 9.4.3 of LPS 1 to nearby owners and occupiers likely to be affected by the development.
Also relevant to this matter are the following local planning policies:
•Shire of AugustaMargaret River Local Planning Policy 25 Short Stay Use Grouped Dwellings (LPP 25)
•Shire of AugustaMargaret River Local Planning Policy 20 Holiday Houses (LPP 20).
Proposed development
The proposed development in this case is the use of the grouped dwelling on the subject site for short stay tourist accommodation, limited to a maximum of six guests and managed by the applicant.
Local government decision
On 27 November 2014, the Shire refused planning approval for the development for the following reasons:
1)The proposal is not consistent with cl 5.26.4 of LPS 1 as it is not located within a coastal settlement or within close proximity of a major tourist attraction.
2)The proposal is not consistent with the acceptable development (AD 1.1.1) or performance criteria (PC 1.1) of the Shire's LPP 25 (Short Stay Use Grouped Dwellings) which requires sites to be located either adjoining, fronting or within an area of significant tourist attraction, or within 300 metres of the Margaret River Town Centre zone.
Issues
The first issue arising for determination in this matter is whether the proposed use is consistent with orderly and proper planning having regard to:
1)the purpose of the Residential zone under LPS 1;
2)the relevant provisions of cl 10.2 of LPS 1;
3)the objectives of the Shire of AugustaMargaret River Local Planning Strategy (Strategy); and
4)the objectives and provisions of LPP 25.
The second issue is whether approval of the proposal would set an adverse planning precedent in the area.
The Tribunal will address each issue in turn.
Issue 1: Whether the proposed use is consistent with orderly and proper planning
The purpose of the Residential zone under LPS 1
The purpose of the Residential zone is stated in cl 4.2.4.1 of LPS 1 as providing 'for a range of urban residential environments within established settlements in the Scheme area and to conserve and enhance the amenity and sense of place of those residential areas'.
Amenity is defined in Sch 1 of LPS 1 as 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
Mr Matthew Cuthbert, a town planner giving evidence for the Shire, was of the opinion that the location of the site 'within a quiet residential area away from areas of high tourist amenity' had the potential to cause adverse impacts on the amenity of the area through noise associated with guest behaviour and vehicle movements, as well as disturbances to community relations and security.
Mr Cuthbert described the character of the area as primarily residential, with numerous trees, quiet and tranquil with an absence of commercial activities and minimal traffic due to the cul-de-sac of Settlers Retreat. It was his concern that the character and amenity would be affected by the use of properties for short stay accommodation because of the potential for loud music, shouting and car parking problems. He said that prior to the adoption of the local planning policies for holiday houses and short stay use of grouped dwellings the Shire received a lot of complaints from neighbours of properties being used for these purposes.
Mr Cuthbert contended that the short stay use of a dwelling was inherently different to the permanent residential use of a dwelling and had the potential to disrupt neighbours because the occupants of short stay accommodation generally had limited connection to the permanent residential community and often maintained irregular and unpredictable hours for vehicular trips and entertaining.
Ms Hewison was of the view that the character of the area included the mix of rentals, holiday houses and owner occupied dwellings in the area, adding that No 74 (immediate neighbour to the north) is used as a personal holiday home and that No 73 (fronting Settlers Retreat) is owned by Western Power and used for staff holidays.
Ms Hewison argued that neighbours could equally be disrupted by permanent occupants of dwellings (she had personal experience of this), and that the stricter management requirements for short stay accommodation actually provided greater protection for the amenity of neighbours. This was borne out by the fact that the subject site had been operating as short stay accommodation for four years and there were no objections by neighbours during this period or to the advertised planning application.
The relevant provisions of cl 10.2 of LPS 1
Clause 10.2 of LPS 1 provides the matters that the local government, and on review the Tribunal, is to have due regard to when considering an application for planning approval. The relevant provisions in relation to this review include the following:
(a)the aims and provisions of the Scheme…;
(b)the requirements of orderly and proper planning …;
(c)any approved statement of planning policy of the Commission;
…
(e)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
(f)any Local Planning Policy adopted by the local government under clause 2.4…;
…
(j)the compatibility of a use or development with its setting;
(k)any social issues that have an effect on the amenity of the locality;
…
(o)the preservation of the amenity of the locality[.]
The objectives of the Strategy
The Strategy provides the strategic planning direction for the local government, sets out the planning rationale for specific zones, and gives effect to the provisions of the Local Planning Scheme. The Strategy sets out strategies for development over the next 15 years and the Scheme is the implementation mechanism for the next five years. The council will have regard to the Strategy when considering planning applications as provided for by LPS 1.
Section 3.11 of the Strategy identifies 'Tourism' as a key planning issue and at section 3.11.3 provides the following policy in relation to holiday houses:
Holiday houses can be used for either permanent or short stay purposes and are appropriate to, and could be expected within coastal settlements of the Shire with the result that applications for planning approval are more likely to be approved in these localities. Conversely, holiday houses are not considered to be appropriate within the residential districts of inland settlements where approvals for such uses are unlikely to be supported.
Section 4.2 of the Strategy sets out the objectives and policies relating to specific land use categories (which may be different to land use 'zones' in the Scheme). The subject site is designated 'Residential' and section 4.2 refers to the following objectives for this land use category:
The Residential land use category provides for residential and ancillary land uses. It is intended that a wide range of housing types and densities be provided within settlements to cater for the Shire's diverse population and housing needs. In particular, there is a current unmet demand for affordable smaller accommodation such as small single dwellings, grouped dwellings and single bedroom accommodation to meet demand from singles, couples, students, smaller families and the elderly.
The use of residential dwellings for short stay holiday homes will generally not be supported within inland settlements including Cowaramup, Margaret River, Karridale, Kudardup and Witchcliffe. The proposed use of residential dwellings for short stay holiday homes is generally considered appropriate within coastal settlements including Gracetown, Prevelly, Gnarabup and Augusta.
The respondent contended that the proposal will reduce the availability of affordable smaller accommodation types and is therefore inconsistent with the Strategy and that the use of single and grouped dwellings has been restricted by the respondent to specific locations in order that there is still affordable residential accommodation available within inland settlements of the Shire.
Ms Hewison contended that her property does not represent the average Margaret River house (and therefore does not represent the median Margaret River house value) because of its high quality design and location. It was her evidence that the capital value of the property was higher than the median whether or not it was to be used for permanent or short stay accommodation. She also said that the long term rental value (as opposed to short stay) would be higher than average because of the quality design and location. It was Ms Hewison's view that this was not the locality for the provision of affordable accommodation and it was not her responsibility to provide it.
It was the Shire's position that the policies relating to the short stay accommodation use of grouped dwellings (LPP 25) and holiday houses (LPP 20) have been prepared and adopted in response to the Shire's experience of amenity impacts on residential areas and in response to the Western Australian Planning Commission Guidelines: Holiday Homes short stay use of residential dwellings.
These Guidelines were adopted in September 2009 with the following objectives:
1.1.1To establish clear guidelines for the short stay use of holiday homes for tourism accommodation. The policy excludes short term accommodation where there is an onsite manager or owner such as bed and breakfast accommodation and guesthouses.
1.1.2To ensure that short stay use of residential homes occurs within appropriate locations to enhance the tourism experience and reduce existing or future land use conflicts such as impacts on residential amenity.
1.1.3To ensure that all new holiday home rental accommodation is in accordance with relevant legislation, local planning schemes and policies, and management plans.
Section 2.3 of the Guidelines discusses the issue of 'Location' as follows:
It is recognised that, in certain locations, the renting of residential premises for short stay holiday accommodation is a legitimate way in which alternative, short stay tourism accommodation can be provided.
To reduce conflict between holiday homes and ordinary dwellings, particularly in the residential zone, ideally holiday homes should be within preferred areas identified either through the tourism component of the relevant local planning strategy, or in a local planning policy. As a guide, holiday homes are most appropriate in areas of high tourism amenity and close proximity to key tourism attractions such as the beach, town centre or rural areas. Suburban locations may not be appropriate. In general, holiday homes should be residential dwellings on freehold lots and not units or apartments unless the entire complex is established for this purpose.
…
The objectives and provisions of LPP 25
LPP 25 was adopted by the Shire on 13 March 2013 in accordance with cl 2.4 of LPS 1 to give guidance on exercising discretion under LPS 1.
The introduction of LPP 25 states that the Shire has interpreted LPS 1 to include the short stay use of grouped dwellings within the 'Residential Building' use class.
Ms Hewison applied for approval for a holiday house which is defined in Sch 1 of LPS 1 as 'a single house (excluding Ancillary Accommodation) which might also be used from time to time for short stay accommodation for no more than six (6) people but does not include a bed and breakfast, guesthouse, chalet and short stay accommodation unit'.
A 'single house' is defined in Appendix 1 of the Residential Design Codes of Western Australia (2013) (Codes) as 'a dwelling standing wholly on its own green title or survey strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property'.
As discussed at the hearing, the subject site is a grouped dwelling (not a single house) because it is a dwelling on a survey strata lot with areas of common property. Therefore, the Shire classified the proposal as a 'residential building' and applied the provisions of LPP 25, rather than LPP 20 (which refers to holiday houses which are single houses on single lots).
It should be noted that holiday houses and residential buildings are both 'A' uses in the 'Zoning Table' of LPS 1 and that there are similar provisions in LPP 25 and LPP 20, particularly in regard to location. The major difference is that under LPP 20, a holiday house can be approved on a site with an area of not less than 1,000 m2 whether or not it adjoins, fronts or is within an area of high tourist attraction or is within an inland settlement providing it satisfies other criteria of the policy.
The objectives of LPP 25 are:
•To ensure that residential buildings are appropriately sited and designed to be compatible with adjoining and surrounding grouped dwellings and other surrounding land uses.
•To ensure that the design and layout of the grouped dwelling development, in which the residential building is located, will mitigate adverse impacts on neighbouring properties.
•To ensure that residential buildings are managed appropriately to avoid conflict with surrounding grouped dwellings.
•To ensure that residential buildings are located in areas of high tourist amenity and attraction and in proximity to relevant services.
•To ensure that the broader residential areas of the Shire remain as affordable land used for residential purposes.
In order to achieve the policy objectives, LPP 25 sets out performance criteria and acceptable development standards for six elements: Location; Occupancy; Car Parking; Design of the Residential Building; Location of Residential Building within the Grouped Dwelling Development; Design of the Grouped Dwelling Development; and Management.
Ms Hewison was of the view that the proposal satisfies either the acceptable development standards or performance requirements of each of these elements, whereas Mr Cuthbert was of the view that the proposal did not satisfy Element 1: Location.
Relevantly, the provisions for Element 1: Location in LPP 25 are as follows:
Acceptable Development
AD 1.1.1
The residential building is located within an inland settlement and within the following areas:
•Adjoining, fronting or within an area of significant tourist attraction;
•Within 300m of the Town Centre zone in the Margaret River townsite; or
•Within 200m of a Village Centre zone in other inland settlements.
AD 1.1.2
The residential building is located on a site with a density coding of R30 or lower.
Performance Criteria
PC 1.1
The residential building should be located in one of the coastal settlements of the Shire and, where it is located within an inland settlement, it should be near an area of high tourist amenity.
Where there is an applicable density coding, the residential building should be located on a lower density site in order to mitigate adverse impacts on surrounding neighbours.
Mr Cuthbert contended that the proposal does not satisfy the acceptable development standards of Element 1: Location, as the site is located within the inland settlement of Margaret River but not located adjoining, fronting or within an area of significant tourist attraction, nor is it within the 'Town Catchment' of 300 metres of the Town Centre zone. It was his opinion that the proposal does not satisfy the performance criteria either, as it is not located near an area of high tourist amenity.
An 'area of significant tourist attraction' is defined in LPP 25 as:
[A] place of interest where tourists visit (excluding tourist accommodation), typically for its inherent or exhibited cultural value, historical significance, natural or built beauty or amusement opportunities, and, for the purpose of this policy, comprises the following:
•Any town centre or village centre in the Shire;
•All areas of National Park and all beaches, caves and areas of recognised natural beauty;
•The Margaret River and associated foreshore and Rails and Trails Reserve; and
•Other attractions that provide a point of activity or amusement for tourists.
An area of high tourist amenity is not specifically defined in LPP 25.
Mr Cuthbert said that the Shire had identified the appropriate location of short stay use of grouped dwellings as up to 300 metres from the Margaret River Town Centre zone because the area closer to the town centre generally had a different character amenity, and contained more commercial activities and mixed uses, than areas further away from the town centre.
Ms Hewison contended that the proposal meets all of the objectives of LPP 25 for the following reasons:
1)the dwelling is appropriately sited and compatible with neighbouring properties with consideration of setbacks, location of living areas and the adjacent reserve;
2)the dwelling is designed with consideration of neighbours and also inhabitants of the property living areas are not immediately adjacent to neighbours and there are considerable setbacks;
3)there is an excellent management system in place as demonstrated by over four years of history; and
4)it is repeated to us that the location of our property is the major draw card for its desirability its location to town, and immediate access to town reserves linking up to the river and surrounds is clearly considered a tourist attraction.
Ms Hewison added that planning policies are to be used as a guide when exercising planning discretion under the Scheme, which is correct. As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], the existence of a policy cannot replace the discretion of the decisionmaker in the sense that it is to be inflexibly applied regardless of the merits of the particular case. However, 'the relevant consideration in many applications will be why the ''policy'' should not be applied; why the relevant planning principles that find expression in the ''policy'' are not relevant to the particular application'.
The question is whether discretion should be exercised to approve a short stay accommodation use in a location other than that required by LPP 25.
Ms Hewison argued that she satisfied the objectives of LPP 25 and that this proposal was unique because of its location adjacent to a vegetated reserve with a cycle path providing pedestrian and cycle access to the Margaret River; its carefully considered design which reduced impacts from outdoor and indoor living areas on adjacent neighbours; the fact that it was designed specifically with short stay accommodation in mind; and its excellent management record which has limited any potential amenity impacts on the surrounding locality.
Specifically in regard to location, Ms Hewison argued that the site is within easy walking distance (560 metres) of the Town Centre zone and 800 metres is typically considered a walkable distance in planning documents such as the Western Australian Planning Commission's Liveable Neighbourhoods.
Tribunal's considerations
The Tribunal is of the view that the proposed use is not consistent with the purpose of the Residential zone under LPS 1. This is because the proposed short stay use has the potential to disrupt the amenity of the area rather than conserve and enhance it.
The Tribunal agrees with Mr Cuthbert's description of the character of the area as 'primarily residential, with numerous trees, quiet and tranquil with an absence of commercial activities and minimal traffic' and is of the view that this character may be adversely impacted by the approval of short stay accommodation in this location. It is not disputed that the property is currently well managed but that does not alter the fact that the use of a dwelling for short stay accommodation is inherently different to the use of a dwelling for permanent residential accommodation. Short stay occupants often have a limited connection to the permanent residential community and have the potential to disrupt the area (not just immediate neighbours) by maintaining irregular and unpredictable hours for vehicle trips and entertaining.
The Tribunal notes Ms Hewison's contention that noise and other negative impacts can occur with long term rentals and owner occupied dwellings and that well managed short stay accommodation has a greater ability to manage these potential impacts. Nevertheless, the Tribunal agrees with the respondent that there is a higher likelihood of adverse amenity impacts arising from noise associated with guest behaviour, vehicle movements and potential disturbances to community relations and security with short stay occupants.
The provisions of cl 10.2 of LPS 1 encompass a number of matters to be considered by the decisionmaker, in this case the Tribunal, when determining an application for planning approval. These include the preservation of the amenity of the locality and any social issues that have an effect on the amenity of the locality as discussed above.
The proposal is not consistent with the objectives of the Strategy in relation to tourism and residential land use. Under the Strategy, short stay accommodation is to be located within coastal settlements of the Shire and will generally not be supported within inland settlements. The intent of the Strategy is to provide for a wide range of housing types and densities within settlements to cater for diverse housing needs.
The Tribunal is of the view that the dwelling on the subject site (while not traditional affordable or low cost housing) does provide a welldesigned dwelling type with a reduced floor area in an inland settlement which may be an attractive housing option for singles, couples, smaller families or the elderly as intended by the objectives of the Strategy.
Allowing short stay accommodation in a property such as this, results in it, and others of similar size and design, likely being unavailable for long term occupancy, particularly given the evidence regarding increased income from short stay accommodation.
With regard to LPP 25, the Tribunal is of the view that the policy is consistent with the relevant planning objectives and provisions expressed in the Scheme and the Strategy. It is appropriate in this case to assess the proposal against the provisions of the policy.
The Tribunal is of the view that the proposal satisfies most of the requirements regarding occupancy, car parking, design, and management contained in the policy. The primary area of disagreement between the parties is in regard to location. The Tribunal agrees with the respondent and finds that the dwelling, while well-managed and well designed, is not located within an area considered to be appropriate having regard to either the acceptable development or performance criteria. The site is not within, nor does it adjoin or front an area of significant tourist attraction as defined within the policy and marked on the policy map. The site is also not within 300 metres of the Margaret River Town Centre zone as shown on the same map. The site is located within the inland settlement of Margaret River but is not near an area of high tourist amenity. The Tribunal does not agree with Ms Hewison that the nature reserve adjacent to the site, even with its connection to trails to the river, can be described as an area of high tourist amenity. The Tribunal therefore finds that the proposal does not satisfy the objectives and criteria of the Shire's policy for the short stay use of grouped dwellings.
The Tribunal finds that the proposed use warrants refusal as it is not consistent with orderly and proper planning having regard to the purpose of the Residential zone under LPS 1, the relevant provisions of cl 10.2 of LPS 1, the objectives of the Strategy, and the objectives and provisions of LPP 25.
Issue 2: Whether approval of the proposal would set an adverse planning precedent
Mr Cuthbert gave evidence that the Shire had granted one approval for short term accommodation in the area outside of the 300 metres 'Town Catchment' and this was on the basis that it was not a grouped dwelling, was on a lot greater than 1,000 m2 in area, and satisfied the criteria of LPP 20 for holiday houses.
Mr Cuthbert was of the opinion that as there was a significant increase in rental return for short stay accommodation compared to long term rentals, this could potentially encourage other property owners in the area to apply for the same use leading to an increase in the potential for impacts on the amenity of the area.
Ms Hewison argued that approval would not set a precedent as each application would have to be assessed on its merits, and that there were factors unique to her property that other applicants would not necessarily have. She stated that the dwelling was designed with a small footprint allowing for generous setbacks, which in turn provided the opportunity for relatively private outdoor entertaining areas with minimal impact on neighbouring properties. The property is located directly adjacent to a vegetated reserve with links to a network of trails to the river and its surrounds, and is located within walking distance of the town centre. And, finally, she has successfully managed the property for four years without complaints from neighbours.
The issue of adverse planning precedent was addressed by Parry J in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71] [77]. At [74] Parry J adopted the criteria stated by Lloyd J in the Land and Environment Court of New South Wales in Goldin v Minister for Transport (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely:
1)the proposed development or subdivision is not, in itself, unobjectionable; and
2)there is more than a mere chance or possibility that there may be later undistinguishable applications.
In this case, the Tribunal is of the view that each of these criteria is met. Firstly, the Tribunal has determined that the proposed development has the potential to adversely impact on neighbouring properties and the residential character of the area. Secondly, the Tribunal is not convinced that the site has such unique factors that make it distinguishable from future applications for sites in the area. The subject site is one of many located close to a network of trails and nature reserves in the Shire. While the design of the dwelling has been carefully executed to minimise potential amenity issues with direct neighbours, this was necessary particularly given its land-locked position and shared accessway. Many of the properties in the area have a more traditional front yard and rear private space design which provides a similar or better amenity for neighbours. And, finally, given the increased monetary return for short stay accommodation, the Tribunal is of the view that there is more than a mere chance or possibility that there may be later undistinguishable applications. Adverse planning precedent is therefore a relevant consideration.
The cumulative impact of similar developments in the low density residential area outside of the Town Centre zone would undermine the purpose of the Residential zone and the objectives of the Strategy. Therefore, the consideration of adverse planning precedent, in the circumstances of this case, also warrants refusal of the development application.
Conclusion
The Tribunal has determined that the proposed use is not consistent with orderly and proper planning having regard to the purpose of the Residential zone under LPS 1, the relevant provisions of cl 10.2 of LPS 1, the objectives of the Strategy, and the objectives and provisions of LPP 25. The proposal therefore warrants refusal.
The Tribunal has also determined that in these circumstances adverse planning precedent is a relevant consideration and warrants refusal of the development application.
Orders
For these reasons the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 27 November 2013 to refuse approval of a Residential Building (Short Stay) at No 23 (Lot 1) Settlers Retreat, Margaret River is affirmed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER
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