HICK and TOWN OF CAMBRIDGE
[2016] WASAT 15
•26 FEBRUARY 2016
HICK and TOWN OF CAMBRIDGE [2016] WASAT 15
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 15 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:317/2014 | 4 AUGUST 2015 (FURTHER WRITTEN SUBMISSION RECEIVED 13 NOVEMBER 2015) | |
| Coram: | MS M CONNOR (MEMBER) | 26/02/16 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is allowed Decision of respondent is set aside in part Decision of respondent is varied in part | ||
| B | |||
| PDF Version |
| Parties: | STEVEN HICK TOWN OF CAMBRIDGE |
Catchwords: | Town planning Development application Conditional approval Cubby house play structure Whether planning approval required Application of deemed provisions in local planning scheme If approval required, whether setback requirement and height limitation should be imposed Patio Whether patio roof should be cut back in line with the outside of the piers Turns on own facts |
Legislation: | Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 61(1)(d), reg 61(1)(i), Sch 2 cl 1 Planning and Development Act 2005 (WA), s 164, s 252(1), s 256(1), s 256B, s 257B(2), s 257B(3) Residential Design Codes of Australia 2015, cl 5.4.3C3.1i, cl 5.4.3C3viii, Table 2a Table 2b State Administrative Tribunal Act 2004 (WA), s 29(1), s 31 Town of Cambridge Town Planning Scheme No 1, cl 5(1), cl 5.13P3.2, cl 32, cl 33, cl 33(1)(d), cl 34(1), cl 38(4), Sch 1 |
Case References: | Phillips and City of Canning [2014] WASAT 55 |
Orders | The Tribunal makes the following orders:,1. The application for review is allowed.,2. The Tribunal sets aside that part of the decision granting conditional approval for the cubby house.,3. The Tribunal, acting pursuant to s 29(1) of the State Administrative Tribunal Act 2004 (WA), rejects the application for planning approval for the cubby house.,4. The Tribunal varies that part of the respondent's decision of 28 August 2014 granting conditional planning approval for the patio by deleting condition (ii). |
Summary | Steven Hick applied to the State Administrative Tribunal for review of conditions imposed by the Town of Cambridge on its decision granting retrospective approval for a patio and a cubby house at No 3 (Lot 175) Talgarth Way, City Beach.,The principal issues that arose for determination relating to the cubby house was whether planning approval was required for the structure under the Town of Cambridge Town Planning Scheme No 1, and if so, whether a setback requirement and a height limitation should be imposed. The only issue to be determined in respect to the patio was whether a condition requiring the roof of the patio to be cut back in line with the outside of the piers was a reasonable condition to impose.,The Tribunal found that in the particular circumstances of this case, pursuant to the Town of Cambridge Local Planning Poliocy No 2.1: Minor Use and Development Exempt from Planning Approval, and by application of clause 61(1)(i) of the 'deemded provisions' contained in Sch 2 Pt 7 of the Planning and Development (Local Planning Schemes) Regulations 2015 that the cubby house was an exempted form of development that does not require planning approval. ,As to the requirement to cut back the roof of the patio to align with the outside of the piers, the Tribunal found that such a requirement would be onerous and that the outcome would not reduce the visual impact of the as constructed patio and, therefore, the requirement should not be imposed.,Consquently, the application for review was allowed and orders made: firstly, setting aside that part of the decision granting conditional approval for the cubbyhouse; secondly, the rejection of the application for planning approval for the cubbyhouse; and thirdly, varying that part of the decision granting conditional planning approval for the patio by deleting condition (ii). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HICK and TOWN OF CAMBRIDGE [2016] WASAT 15 MEMBER : MS M CONNOR (MEMBER) HEARD : 4 AUGUST 2015 (FURTHER WRITTEN SUBMISSION RECEIVED 13 NOVEMBER 2015) DELIVERED : 26 FEBRUARY 2016 FILE NO/S : DR 317 of 2014 BETWEEN : STEVEN HICK
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning Development application Conditional approval Cubby house play structure Whether planning approval required Application of deemed provisions in local planning scheme If approval required, whether setback requirement and height limitation should be imposed Patio Whether patio roof should be cut back in line with the outside of the piers - Turns on own facts
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 61(1)(d), reg 61(1)(i), Sch 2 cl 1
Planning and Development Act 2005 (WA), s 164, s 252(1), s 256(1), s 256B, s 257B(2), s 257B(3)
Residential Design Codes of Australia 2015, cl 5.4.3C3.1i, cl 5.4.3C3viii, Table 2a Table 2b
State Administrative Tribunal Act 2004 (WA), s 29(1), s 31
Town of Cambridge Town Planning Scheme No 1, cl 5(1), cl 5.13P3.2, cl 32, cl 33, cl 33(1)(d), cl 34(1), cl 38(4), Sch 1
Result:
Application for review is allowed
Decision of respondent is set aside in part
Decision of respondent is varied in part
Summary of Tribunal's decision:
Steven Hick applied to the State Administrative Tribunal for review of conditions imposed by the Town of Cambridge on its decision granting retrospective approval for a patio and a cubby house at No 3 (Lot 175) Talgarth Way, City Beach.
The principal issues that arose for determination relating to the cubby house was whether planning approval was required for the structure under the Town of Cambridge Town Planning Scheme No 1, and if so, whether a setback requirement and a height limitation should be imposed. The only issue to be determined in respect to the patio was whether a condition requiring the roof of the patio to be cut back in line with the outside of the piers was a reasonable condition to impose.
The Tribunal found that in the particular circumstances of this case, pursuant to the Town of Cambridge Local Planning Poliocy No 2.1:Minor Use and Development Exempt from Planning Approval, and by application of clause 61(1)(i) of the 'deemded provisions' contained in Sch 2 Pt 7 of the Planning and Development (Local Planning Schemes) Regulations 2015 that the cubby house was an exempted form of development that does not require planning approval.
As to the requirement to cut back the roof of the patio to align with the outside of the piers, the Tribunal found that such a requirement would be onerous and that the outcome would not reduce the visual impact of the as constructed patio and, therefore, the requirement should not be imposed.
Consquently, the application for review was allowed and orders made: firstly, setting aside that part of the decision granting conditional approval for the cubbyhouse; secondly, the rejection of the application for planning approval for the cubbyhouse; and thirdly, varying that part of the decision granting conditional planning approval for the patio by deleting condition (ii).
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr E Ferraro
Solicitors:
Applicant : N/A
Respondent : Ferraro Planning and Development Consultancy
Case(s) referred to in decision(s):
Phillips and City of Canning [2014] WASAT 55
Introduction
1 Mr Steven Hick (applicant) made application to the Town of Cambridge (respondent, Council or Town) on 13 June 2014 for retrospective planning approval for a patio and a kids cubby (cubby house or play structure) at No 3 (Lot 175) Talgarth Way, City Beach (subject land).
2 The Council, at its meeting of 28 August 2014, granted conditional planning approval subject to the following four conditions:
(i) The cubby house being modified to be setback [sic] a minimum of 1.0 metre from the rear boundary and reduce[d] in height so that any floor level of the cubby [house] is at least 1.6 metres lower than the top of the dividing fence;
(ii) The patio roof (including fascia) being cut back in line with the outside of the piers;
(iii) The patio being completed to ensure water draining from the patio roofs is directed to garden areas, sumps or rainwater tanks within the site for the effective retention of stormwater on site;
(iv) The owner [being] advised that the required works the condition of this approval are to be complied with within 30 days of the date of the approval.
3 The applicant, on 23 September 2014, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have conditions (i) and (ii) of the approval reviewed.
4 The parties engaged in a mediation process facilitated by the Tribunal member, which resulted in modification to the original proposal (amended plans dated 27 March 2015 - refer to pages 41 and 42 of Exhibit 3) and an invitation by the Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), for the respondent to reconsider the reviewable decision. The respondent in effect affirmed its previous decision.
Subject land
5 The subject land is rectangular in shape, being 22.1 metres wide and 40.4 metres deep and is 870 m2 in area. Improvements on the land include:
1) a two storey dwelling located approximately 11.1 metres from the rear boundary of the subject land;
2) an existing skillion metal roof patio, approximately 11.16 metres in length, 3.7 metres wide and 2.27 metres above the finished ground level of the subject land. The roof of the structure is set back approximately 360 millimetres from the northern side boundary. This structure is one of the structures the subject of review; and
3) a pergola structure that is approximately 9.5 metres in length and 3.1 metres wide located on the rear (eastern) boundary. Constructed within the pergola is a play structure, also the subject of this review.
6 The subject land slopes up from the road to the rear boundary, with the rear boundary being some 1.2 metres higher than the ground level of the dwelling. There is a two metre high retaining wall that extends the full length of the common boundary with No 39 (Lot 193) Bendigo Way (Lot 193). It would appear that that retaining wall is located within the boundaries of the adjoining property. On top of the retaining wall is an asbestos fence measuring 1.4 metres high above the existing ground level of Lot 193.
The proposal
7 The play structure sits under a coastal tuart tree and an existing pergola, and is constructed within a raised garden bed which is approximately 800 millimetres above the ground level of the main outdoor living area of the subject land. The play structure incorporates three separate platforms, each constructed at differing heights above the raised garden bed. The platforms range in height from 730 millimetres to 1,140 millimetres above the ground level of the raised garden bed and are approximately 2,500 millimetres deep and 3,800 millimetres wide. The play structure, which is referred to by the parties as a cubby house, abuts the retaining wall that extends along the common boundary with Lot 193.
8 Privacy screening, comprising of Colorbond sheeting, is to be inserted between the columns of the pergola. The effect of the sheeting is to create a screen that is 1.8 metres high, as measured from the ground level of Lot 193, and is approximately 7.47 metres in length.
9 The patio replaces a pergola that was in the same location with the same piers, albeit they have been raised 120 millimetres in height. The applicant has added a low pitched skillion Colorbond roof. There is a gutter and fascia now in place, which sits between the roof and the side boundary wall.
Planning framework
10 The subject land is zoned Residential with a density coding of R12.5 under the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme). The purpose of TPS 1 is to control and guide development: cl 5(1).
11 'Development' is defined in the Sch 1 definitions of TPS 1 as having the same meaning as is given to it in the Planning and Development Act 2005 (WA) (PD Act) but includes two other matters not relevant to this review.
12 'Development' as defined in the PD Act means:
The development or use of any land, including -
(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land[.]
13 At the time of the hearing, the following clauses of the Scheme set out the requirements for obtaining planning approval for development under the scheme:
• Clause 32 of TPS 1 headed 'NEED FOR PLANNING APPROVAL' provided that 'all development … except as otherwise provided in cl 33 of the Scheme, requires the prior approval of the Council in each case'.
• Clause 33 of TPS 1 specifies development of land exempt from obtaining planning approval and includes the following relevant provisions:
(1) The planning approval of the Council is not required for the following development of land:
…
(d) Development of a minor nature where listed as exempt from the requirement to obtain Planning Approval in a Planning Policy.
(e) The erection on a lot of a single dwelling house, including ancillary outbuildings, in a zone where the proposed use is designated with the symbol 'P' in the cross[-]reference to that zone in the Zoning Table, except where otherwise provided by the Scheme.
…
(2) Notwithstanding that a single house or ancillary outbuilding does not require the prior approval of the Council pursuant to the Scheme, any person who wishes Council to exercise discretion under the Residential Planning Codes or a Planning Policy relating to the erection of a single house or ancillary outbuilding shall, at the time of lodging an application for a building licence or earlier, apply in writing to Council, seeking Council’s approval for the variation.
Construction of patios, pergolas, garden sheds and the like, provided the development complies with the deemed-to-comply requirements of the Residential Design Codes and any relevant planning policy.
15 Clause 34(1) of the Scheme provides for a person to apply to the Council for planning approval for unauthorised existing development.
16 Clause 38(4) of the Scheme contains a list of matters to which regard is to be had in determining an application.
17 However, since the conclusion of the hearing, the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) came into force on 19 October 2015 under s 256(1) of the PD Act. The LPS Regulations include deemed provisions which are contained in Sch 2 and are provisions to which s 257B of the PD Act apply.
18 Regulation 10(4) of the LPS Regulations states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
19 Furthermore, reg 8(1)(c) of the LPS Regulations expressly states:
The documents that comprise a local planning Scheme are the following:
…
(b) If any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text - those provisions[.]
20 Sections 257B(2) and 257B(3) of the PD Act state as follows:
(2) Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3) If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
21 Clause 60 of the deemed provisions requires that development approval be obtained to 'commence or carry out works on, or use, land in the Scheme area' (emphasis added). Under clause 60(b), this requirement is subject to the exemptions specified in clause 61 of the deemed provisions.
22 '[W]orks in relation to land' is defined in cl 1 of the deemed provisions as meaning:
(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land[.]
23 Clause 61 of the deemed provisions specifies 'works' that do not require development approval of the local government and include the following relevant works:
(1)(d) the erection or extension of an ancillary dwelling, outbuilding external fixture, boundary wall or fence, patio, pergola, veranda, garage, car port or swimming pool on the same lot as a single house or grouped dwelling if the R-codes apply to the development and the development satisfies the deemed-to-comply requirements of the R-Codes unless …
…
(1)(i) the carrying out of any other works specified in a local planning policy or local development plan that applies to the development as works that do not require development approval.
24 Clause 65 of the deemed provisions is relevant as it relates to subsequent approval of development, which is the case in this matter. Clause 65 states as follows:
The procedures relating to applications for development approval set out in Part 7, Part 9 and this Part apply, with any modifications necessary, to an application for development approval for development already commenced or carried outs.
25 It is also noted that s 164 of the PD Act sets out the effect of approval for development commenced or carried out.
26 Part 9 of the deemed provisions deals with 'Procedures for dealing with applications for development approval', which provides for the approval of development application under clause 68 of the deemed provisions. Clause 65 of the deemed provisions enables approval to be granted under clause 68 for development already carried out.
27 Clause 67 of the deemed provisions sets out the matters that the local government, and the Tribunal on review, is to have due regard to in considering an application for development approval.
28 As the LPS Regulations, including the deemed provisions, commenced operation after the conclusion of the hearing, the Tribunal invited the parties to file submissions in relation to the effect of the LPS Regulations and the deemed provisions on this matter. The respondent filed a lengthy submission dated 12 November 2015. No submissions were received from the applicant. In summary, the respondent submitted, and the Tribunal agrees, that there is inconsistency between a number of provisions of the Scheme and the deemed provisions, and the relevant effect of the deemed provisions in this instance are:
(i) clauses 60 and 61 of the deemed provisions prevail over clauses 32 and 33 of the Scheme;
(ii) clauses 65 and 68 of the deemed provisions prevail over clause 34 of the Scheme;
(iii) clause 67 of the deemed provisions prevails over clause 38(4) of the Scheme; and
(iv) clauses32, 33, 34 and 38(4) of the Scheme have no effect.
Issues
29 The following issues arise for determination in relation to these proceedings:
1) Whether planning approval is required for the cubby house under TPS 1, and if so, whether condition (i), which imposes a setback requirement and a height limitation, should be imposed given the circumstances of the matter.
2) Whether condition (ii), which requires the patio roof being cut back in line with the outside of the piers, is reasonable.
- The Tribunal will address each issue in turn.
Whether planning approval is required for the cubby house under TPS 1, and if so, whether condition (i), which imposes a setback requirement and a height limitation, should be imposed given the circumstances of the matter
30 The applicant contends that he does not, in fact, require development approval for the cubby house under TPS 1 because it is exempt from planning control under the Residential Design Codes of Australia 2015 (Codes).
31 In contrast, the respondent contends that the cubby house is a 'work' that falls within the scope and purpose of the Scheme and therefore requires development approval.
32 As to whether the proposed development is exempt from the requirement for approval under clause 61 of the deemed provisions, the respondent submits the following:
i) the cubby house is neither a patio nor a pergola for the purposes of the Codes and consequently is not exempt from the requirement to obtain planning approval under clause 61(1)(d) of the deemed provisions of the LPS Regulations; and
ii) although the Town has adopted LPS 2.1 which, at point 3, states:
Construction of patios, pergolas, garden shed and the like, provided the development complies with the deemed to comply requirements of the Residential Design Codes and any relevant planning policy[,]
- the cubby house is not exempt from the requirement to obtain planning approval under clause 61(1)(i) of the deemed provisions as:
a) the policy does not refer to cubby houses;
b) the cubby house is neither a patio nor a pergola; and
c) the policy does not suggest a group of structures with any particular unifying attributes to form some identifiable class of structure, and as such, there is no basis to conclude that the cubby house is a 'like' structure to patios, pergolas or garden sheds under the policy.
34 The Tribunal however, does not agree with the respondent's position in respect to the applicability of clause 61(1)(i) of the deemed provisions. It is accepted that the Town has adopted LPS 2.1 to 'provide clarification and guidance concerning development of a minor nature that does not require the planning approval of the Council', and that a cubby house is not referred to in the policy, and that the development applied for is neither a patio nor pergola. The Tribunal does not accept the respondent's argument that there is no basis to conclude that a cubby house is a 'like' structure to patios, pergolas and garden sheds. These structures are commonly found in rear yards of residential properties; and they are 'incidental development' – that is, they are 'associated with or attached to a dwelling and incidental to its main residential functions': Appendix 1 Definition Codes. A cubby house is undoubtedly associated with a dwelling and is incidental to its main residential function and is therefore considered to be a 'like' structure. Whether the application of the deemedtocomply provisions of Codes to the structures has an impact as to whether the structures could be considered 'like' is addressed at para[47].
35 In order for such a structure to be exempt from planning approval under LPS 2.1, and by extension clause 61(1)(i) of the deemed provisions, it must comply with the deemed-to-comply requirements of the Codes and any relevant planning policy. The only statutory planning instrument the respondent relies on, if the development is found to be 'like', is the Codes. The respondent did refer to a fact sheet headed 'When Do You Need Planning Approval?' produced by the City that states that cubby houses/tree houses do not require planning approval 'provided these are not located in the front setback area and the floor level is no greater than 0.5m above the natural ground level'. This document has no formal planning status and as such is accorded no weight.
36 The respondent contends that the relevant design element of the Codes is clause 5.1.3 'Lot boundary setback'. Mr Ferraro, a town planning consultant acting on behalf of the respondent, asserts that the structure would need to be set back 6 metres from the rear boundary to comply with the deemedtocomply requirements of the Codes. As the development does not meet this requirement, he contends that the cubby house is not exempt from planning approval and requires assessment against the relevant 'design principles' contained in the Codes. He relies on clause 5.1.3 P3.2 of the Codes, which also refers to the design principle contained in clause 5.1.3 P3.1 of the Codes.
37 Clause 5.1.3 of the Codes relates to 'Buildings'. A 'Building' is defined in Appendix 1 - Definition of the Codes as '[a]ny structure whether fixed or moveable, temporary or permanent, placed or erected on land[,] and the term includes dwellings, and structure appurtenant to dwellings such as a carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools'. Given the nature of the provision in regards to exclusions, at first blush, one may conclude that a cubby house is a structure appurtenant to dwellings and therefore considered to be a building.
38 However, the Codes recognise that there is a case for relaxed standards for some structures located in the rear yards of single and grouped dwellings. Clause 5.4.3 of the Codes specifically provides for 'Outbuildings'. Section 7.3 'Outbuildings of the Explanatory Guidelines' of the Codes (Explanatory Guidelines) explains the rationale for distinguishing between outbuildings and the main building or buildings. Furthermore, it states the following at page 71:
Other common private garden or backyard constructions such as pergolas, cubby houses and play fixtures, and dog kennels have not been included in the definition of building and are exempted from planning control, although some decision-makers do have policies to control certain backyard constructions (for example, cubby houses).
39 The Explanatory Guidelines are relevant to the interpretation of the Codes: Phillips and City of Canning [2014] WASAT 55 at [36].
40 It appears that the Explanatory Guidelines support the conclusion that a cubby house is not a 'building' for the purposes of the Codes and that the deemed-to-comply requirements for 'lot boundary setbacks' for a single house are not an appropriate standard to be applied for a structure such as the one the subject of this review. It would be anomalous if an outbuilding could be approved with a setback of 1.5 metres from the rear boundary (in accordance with Tables 2a and 2b of the Codes: see clause 5.4.3C3viii) of the Codes, and that a play structure, such as the one the subject of this review, be required to be set back 6 metres from the rear boundary: see clause 5.1.3C3.1i of the Codes). The Tribunal, therefore, finds that the cubby house is not a 'building' and therefore clause 5.1.3 of the Codes is not applicable.
41 The suggested criteria in the Explanatory Guidelines for assessing incidental structures located in rear yards are that they do not detract from the essential functions of private open space, the visual amenity of neighbours or the streetscape. Although the cubby house is not by definition an outbuilding, and therefore cannot be assessed against the deemed-to-comply provisions or design principles contained in clause 5.4.3 of the Codes, it would, however, seem appropriate to refer to the corresponding design elements relating to private open space, visual privacy and streetscape to assess the impacts of the cubby house.
42 There is no assertion by the respondent that the cubby house detracts from the streetscape or affects the function of the private open space of the subject lot. The respondent asserts that the cubby house is visually intrusive and adversely affects the visual privacy amenity of the neighbours at Lot 193. Evidence was adduced by the respondent from Mr Andrew McKerracher and Mrs Kathryn McKerracher, owners of Lot 193. Mrs McKerracher explained that, due to the location and height of the cubby house, there was 'direct unobstructed overlooking into [their] backyard and into their two daughters' bedroom and guest bedroom[,] and that it provided a climbable object into their backyard'. Photographs were provided in Mrs McKerracher's witness statement to demonstrate the overlooking issue and both witnesses referred to incidents where the neighbours' children had gained unlawful access to their property via the play structure. In regards to the current proposal, which includes screening, Mr KcKerracher and Mrs McKerracher are opposed, as the view from the verandah and three habitable rooms will be 'directly onto an unsightly colourbond [sic] screen and wood structure in the middle of their backyard that is set up against the boundary with no setback'.
43 During the hearing, the Tribunal questioned Mr Ferraro as to whether clause 5.4.1 'Visual Privacy' of the Codes had any application in this instance. Mr Ferraro did not consider it to be of relevance in the determination of this matter. However, the respondent, in its written submissions dated 12 November 2015, refers to clause 5.4.1C1.1 of the Codes, and contends that the cubby house does not meet the deemed-to-comply requirements of this design element and therefore is not exempt from the requirement for planning approval under clause 61(1)(i) of the deemed provisions.
44 Clause 5.4.1C1.1 of the Codes states:
Major opening and unenclosed outdoor active habitable spaces, which have a floor level of more than 0.5m above natural ground level and overlook any part of any other residential property behind its street setback line are: …
45 The Tribunal has considered the definitions of 'active habitable space' and 'outdoor living area' as contained in Appendix 1 - Definitions of the Codes, and finds that the cubby house does not fall within the definition of 'active habitable space', given the proximity of the cubby house to the dwelling, and therefore clause 5.4.1 of the Codes is not applicable in this instance.
46 In having regard to the current planning framework the Tribunal is of the view that there are no applicable deemedtocomply provisions of the Codes that relate to the cubby house and there is no other relevant planning policy. This being the case, the Tribunal finds that pursuant to LPS 2.1 and by application of clause 61(1)(i) of the deemed provisions, the development applied for is exempt from planning approval.
47 The Tribunal also notes, that in its determination of this matter it also considered whether the findings that there are no applicable deemedtocomply provisions of the Codes that relate to the cubby house affects the consideration of whether it is a 'like' structure. The answer to this question is 'no' as a pergola is specifically identified as an exempted structure and there are no applicable provisions contained in the Code relating to this form of development either.
48 Further, if the respondent wants cubby houses not to be exempt from planning approval or unless they meet certain criteria, the Council, in accordance with the deemed provisions and the Codes, must properly adopt a local planning policy pursuant to the Scheme.
49 Given that the cubby house is exempt from the requirements of planning approval neither the Council, or the Tribunal on review, has the power to determine the development application in so far as it relates to the cubby house.
50 Section 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states:
The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
51 In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of a hearing de novo for the purpose of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time the review: s 27 of SAT Act.
52 The correct and preferable decision in this case is to exercise the Council's function under s 29(1) to reject the development application in so far as is seeks approval for the exempted form of development, namely cubby house. Given that there is a conditional approval of the Council purporting to regulate the cubby house, which is exempt from the need for development approval, it is appropriate to set aside that part of the decision that imposes conditions on the cubby house.
Whether the imposition of condition (ii), which requires the patio roof being cut back in line with the outside of the piers, is reasonable in the circumstance of this case
53 The patio replaces a pergola that was situated in the same location with the same piers, albeit the piers have been slightly raised by approximately 120 millimetres in height. A low pitch skillion Colorbond roof has been added and there is a gutter and fascia now in place which sits between the roof and the side boundary wall. The height of the patio adjacent to the side boundary, common with No 1 Talgarth Way (adjoining property), measures 2.27 metres above the finished ground level of the subject land. There is no dispute between the parties that the alterations undertaken by the applicant required planning approval.
54 The issue in dispute is the setback of the structure to the common boundary with the adjoining property. The plans indicate that the existing piers are set back 540 millimetres from the boundary and that the roof of the patio is set back 360 millimetres from the boundary. By cutting back the patio roof in line with the outside of the piers, as required by condition 2, the setback to the patio roof to the boundary will be increased by 180 millimetres.
55 There is no dispute between the parties that the development does not satisfy the deemed-to-comply provision of clause 5.1.3 of the Codes and therefore requires assessment against the corresponding design principles.
56 In respect to clause 5.1.3 of the Codes, it is noted that although the patio roof and piers are not physically located on the 'lot boundary', for the purposes of this clause, 'the term "up to the lot boundary" means a wall, on or less than 600 millimetres, from any lot boundary, other than a street boundary'.
57 The respondent submits that the patio does not demonstrate compliance with design principle clause 5.13P3.2 dot points three and five of the Codes, which state as follows:
Buildings built up to boundaries (other than the street boundary) where this:
…
. does not have any adverse impact on the amenity of the adjoining property;
…
. positively contributes to the prevailing development context and streetscape.
58 The respondent submits that the entire length of the northern face of the patio is clearly visible from the backyard of the adjoining property and appears to be very close to the boundary. The respondent argues that the visual prominence of the structure adversely affects the amenity of the adjoining property, particularly as the area is coded R12.5 and the expectation for the area is for generous setbacks to all structures from the side boundaries. Further, the location of the structure so close to the side boundary is not considered to positively contribute to the prevailing development context, which is characterised by large lots with generous setbacks.
59 The applicant submits that the original length and relative height of the patio is unchanged as a result of the works and that a standard gutter is the only part of the patio visible to the neighbour. The applicant considers that proposed modification required by condition 2 will have limited visual amenity impact as the adjoining property is at a lower ground level than the subject lot and is disproportionate to any benefit in visual amenity that may be gained. The applicant also relies on a paragraph in the planning report to Council contained in the Town of Cambridge minutes of 26 May 2015 which states as follow:
… It is of concern that [the modifications] could result in the patio roof being higher than that proposed. It is considered that the c-purlin being between the pillar and gutter and at the similar height to which presently exists is preferable to the patio being of increased height.
60 A view from the adjoining property was undertaken by the Tribunal with the permission of both parties. The view showed that the entire length of the northern face of the patio is visible above the existing dividing fence and established vegetation from the rear yard of the adjoining property.
61 There is no doubt that condition 2 will require substantial modification to the structure. However, the Tribunal, on the evidence, cannot conclude that the modification will result in the height of the structure being raised, although this may be the case.
62 The Tribunal is of the view that even if the height of the structure does not alter, the additional 180 millimetre setback gained by cutting back the roof of the patio to align with the existing piers will have a negligible perceived effect on reducing the visual impact of the structure on the adjoining property. If, in fact, the modification requires the height of the roof to be raised, the visual impact of the patio as viewed from the adjoining property would be worsened. The Tribunal considers the works required to be undertaken by condition 2 to be onerous, and that the outcome will not reduce the visual impact of the as constructed patio. In having regard to the relevant objectives and design principles of the Codes, and considering the merits of the application, Tribunal finds that the requirement to cut back the roof in line with the outside of the piers should not be imposed.
Orders
63 For these reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The Tribunal sets aside that part of the decision granting conditional approval for the cubby house.
3. The Tribunal, acting pursuant to s 29(1) of the State Administrative Tribunal Act 2004 (WA), rejects the application for planning approval for the cubby house.
4. The Tribunal varies that part of the respondent's decision of 28 August 2014 granting conditional planning approval for the patio by deleting condition (ii).
I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
0
1
5