Hopkin v Shire of Serpentine-Jarrahdale
[2006] WASAT 317
•31 OCTOBER 2006
HOPKIN and SHIRE OF SERPENTINE-JARRAHDALE [2006] WASAT 317
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 317 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:8/2006 | 10 APRIL 2006, 19-20 JUNE 2006 | |
| Coram: | MR P McNAB (MEMBER) | 31/10/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Applications for review dismissed. | ||
| B | |||
| PDF Version |
| Parties: | DAVID HOPKIN SHIRE OF SERPENTINE-JARRAHDALE |
Catchwords: | Town planning Local government Enforcements and approvals Construction of unauthorised Zincalume roof House located in scenic area Darling Scarp area Shire's written planning policy protecting visual amenity in so-called "seen area" Whether Zincalume as reflective as Colorbond Calculating glare and reflectivity Approval originally given for Colorbond Written direction to remove roof or alter by painting Subsequent retrospective approval for Zincalume also refused by Shire Matters heard and determined together Approaches of planning Tribunals interstate compared Consistency of approvals by respondent Shire Aims of policy endorsed and applied by Tribunal Principal decision below affirmed Notice set aside to enable applicant time to comply with his obligations Applications otherwise refused |
Legislation: | Planning and Dedevelopment Act 2005 (WA), s 214 Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.12.9(i), cl 6.4.2, cl 6.8.1, cl 9.2 Town Planning and Development Act 1928 (WA), s 10 |
Case References: | Burnett and Town of Cambridge [2006] WASAT 29 Foster and City of Port Adelaide Enfield [1998] SAERDC 453 Huebner v Hepburn SC [2002] VCAT 442 Patterson v Redland Shire Council [2003] QPELR 259 Smart and Byrne v The Barossa Council [1999] SAERDC 29 Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232 Sweeney & Anor and Shire of Busselton [2006] WASAT 277 Nil |
Orders | 1. The decision under review to issue a s 10 Notice under the former Act is set aside and in lieu thereof there will be a decision not to issue the said Notice, without prejudice to the respondent's right in due course if necessary to issue a fresh written direction under s 214 of the Planning and Development Act 2005 (WA).,2. The applications for review are otherwise dismissed and the decisions under review are otherwise affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : HOPKIN and SHIRE OF SERPENTINE-JARRAHDALE [2006] WASAT 317 MEMBER : MR P McNAB (MEMBER) HEARD : 10 APRIL 2006, 19-20 JUNE 2006 DELIVERED : 31 OCTOBER 2006 FILE NO/S : DR 8 of 2006
- DR 587 of 2005
- Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Local government - Enforcements and approvals - Construction of unauthorised Zincalume roof - House located in scenic area - Darling Scarp area - Shire's written planning policy protecting visual amenity in so-called "seen area" - Whether Zincalume as reflective as Colorbond - Calculating glare and reflectivity - Approval originally given for Colorbond - Written direction to remove roof or alter by painting - Subsequent retrospective approval for Zincalume also refused by Shire - Matters heard and determined together - Approaches of planning Tribunals interstate compared - Consistency of approvals by respondent Shire - Aims of policy endorsed and applied by
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Tribunal - Principal decision below affirmed - Notice set aside to enable applicant time to comply with his obligations - Applications otherwise refused
Legislation:
Planning and Dedevelopment Act 2005 (WA), s 214
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.12.9(i),
cl 6.4.2, cl 6.8.1, cl 9.2
Town Planning and Development Act 1928 (WA), s 10
Result:
Applications for review dismissed.
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr C Slarke
Solicitors:
Applicant : Self-represented
Respondent : McLeods
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
Foster and City of Port Adelaide Enfield [1998] SAERDC 453
Huebner v Hepburn SC [2002] VCAT 442
Patterson v Redland Shire Council [2003] QPELR 259
Smart and Byrne v The Barossa Council [1999] SAERDC 29
Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232
Sweeney & Anor and Shire of Busselton [2006] WASAT 277
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Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 These two reviews concerned Mr Hopkin's Zincalume roof erected on his house in 2005. This house is located in the Shire of Serpentine-Jarrahdale. The applicant's property is also located in the scenic lower Darling Scarp.
2 Originally, in 2004, approval had been given by the Shire for a green Colorbond roof. In 2005, the Shire issued a written direction under the town planning law requiring the roof to be modified by removal or painting, so as to reinstate the originally approved roof design element and colour.
3 Later, the Shire refused to give retrospective planning approval for the Zincalume roof.
4 In all cases the Shire was acting according to its planning framework that sought to protect visual amenity in parts of the Scarp area by discouraging, if not prohibiting, Zincalume roofs.
5 Mr Hopkin argued that the policies were not applied consistently in the Shire and that they lacked a rational basis. The Tribunal did not accept these arguments. The Tribunal considered that the policies were justified and were capable of application to the circumstances of the case and ought to be applied.
6 Accordingly, the Tribunal dismissed the applications for review.
Introduction: main issues to be determined
7 At issue in this review is whether the roofing material of the single dwelling house currently established upon the subject land (described below) and owned by the applicant (Mr Hopkin) complies with the respondent's planning framework.
8 The applicant's dwelling house is completely covered with a Zincalume roof, which the respondent Shire contends is contrary to its planning scheme and policies.
The subject land
9 The subject land comprises Lot 216 Butter Gum Close, Serpentine. This property - and the surrounding area - is in the lower Darling Scarp, a matter that, as will become apparent, is central to the determination of this
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- review. Lot 216 is 7470 square metres in area and contains, as is indicated above, a single dwelling.
10 It is the Zincalume roof of that dwelling which is the subject matter of this review.
11 The following description of the land and its locality is taken from the witness statement of Mr Michael Daymond, who was the principal witness called by Mr Slarke for the respondent Shire:
"The locality, [that is, the land bound by Selkirk Road to the north and South Western Highway to the west] comprising Lots 201 to 221, is characterised by single residential development with lot sizes ranging between 6515 [square metres] to 3.24 hectares. The locality lies on the lower slopes of the Darling Scarp rising from 60 metres at its lowest point in the south west to 110 metres on the eastern edge of the smaller lots. Lot 216 is one of the more elevated properties within the locality."
12 The description supplied by Mr Daymond is common ground between the parties. Thus, it is accepted by the parties that the subject land is one of the more elevated properties in the locality. Further, it is a large lot with a sizeable single dwelling established upon it and, at the moment, there is little surrounding vegetation on the property.
13 It is also common ground that the land is zoned Rural Living A under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2). It will be necessary to return to some of the clauses in that scheme and associated policies, and these are referred to below in more detail.
History of the matter
14 In September 2004 a development application was received where the applicant submitted that the roof would be finished with Colorbond. The colour was expressly identified as "Mist Green".
15 An approval for development was given in terms which in effect incorporated that design criteria. Thus, the notice of approval to commence development dated 28 September 2004 stated:
"Only materials identified in the schedule of colours, materials and finishes are to be used in the construction of the dwelling
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- unless the prior written approval of the Manager Planning and Regulatory Services is obtained."
16 The dwelling subsequently erected on the subject land was, however, constructed with a Zincalume roof rather than the roof indicated and approved by the respondent.
17 As a consequence, in August 2005 the respondent gave to the applicant a written direction pursuant to the now repealed Town Planning and Development Act 1928 (WA) (s 10 Notice) which in its effect required the reinstatement of the design criteria (that is, a "Mist Green" roof) by removal or painting, consistently with the previous planning approval.
18 A review in this Tribunal was sought of the respondent's decision to issue the s 10 Notice.
19 The applicant subsequently made an application for retrospective planning approval for his Zincalume roof.
20 On 13 December 2005, the respondent refused that application, particularly having regard to its written policies concerning scenic reflection in this part of the Darling Scarp. In summary, the refusal was for the following reasons:
1. The colour of the building's roof was undesirable for the locality because of the exposed nature of the subject land.
2. There was a lack of remnant vegetation cover.
3. There was an adverse reflective scenic impact caused by the roof, particularly in late afternoon and early evening times.
22 The Tribunal has been aided by a view of the subject land and the immediate locality.
23 Thus, the essential issue before the Tribunal is whether the reflective contrast arising from the use of a Zincalume roof in the relevant area warrants refusal pursuant to the discretion given to the respondent in terms of TPS 2 and the associated policies made under that scheme. (These policies will be referred in more detail below.)
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The planning framework
24 The Tribunal has had regard to the following provisions in TPS 2: cl 6.4.2, cl 6.8.1, cl 9.2, and in particular cl 5.12.9(i). Clause 9.2 has, in effect, a link to the Landscape Protection Policy (Local Planning Policy No 8 of 2002) (landscape policy). See also the relevant rural living policy objective or guideline in the Shire's Rural Strategy and its reference to minimising "the visual impact of built structures" for "Rural Living A": see page 37.
25 In summary, the landscape policy regulates development in certain areas of high landscape value with the intent of minimising the visual intrusiveness of development. The landscape policy has an emphasis on blending development with the visual appearance of the relevant landscape. It is unnecessary to set out in detail all of the clauses of the policy, except to note that cl 3 of the policy specifically discourages the use of Zincalume roofing materials unless measures are taken to prevent reflection, as follows:
"The use of Zincalume or reflective glazing within this policy area will not be permitted in the 'seen area' as defined … unless measures are taken to prevent reflection. Such measures may include landscaping and colour schemes that blend with the surrounding environment, roof pitch and tilt on glazing."
26 The landscape policy has application in the "seen area", which is defined in part as "development [seen] from the coastal plane, major roads and tourist routes and major recreational areas". Precisely delineating which areas were regulated could perhaps, in some cases, be problematic; however the applicant, conceded here that the subject land was within the "seen area" as defined by the policy and the Tribunal is otherwise satisfied, from the evidence of Mr Daymond, that this is the case.
Respondent's case
27 In summary, Mr Daymond told the Tribunal that the subject land was within an area of high landscape protection value; that there were detailed development control provisions applicable to the subject land (these are discussed above); that one of the regulatory matters of particular concern as regards relevant development controls was the need to pay particular attention to maintaining the visual amenity and landscape value of this area; that highly reflective roofing material was consistently discouraged; and further, that the visibility of properties on the Darling Scarp from the South Western Highway was "a matter of importance to users of that
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- highway and owners of neighbouring properties". On this point, regarding amenity, he said:
"People who purchase land within the Rural Residential subdivisions of the Darling Scarp would be expected to be attracted there by the qualities and amenity of the area, which includes its landscape value. The residents could legitimately expect that amenity to be retained, and for highly reflective roofing materials such as zincalume to be prohibited in accordance with the [landscape policy]."
29 In Mr Daymond's opinion, and as arguably appears from the photographs themselves, the "silver" nature of the current light-coloured Zincalume roof on the subject land could be readily contrasted with the Colorbond roofs of neighbouring houses. Mr Daymond said:
"I would agree that all roofing material is likely to be reflective to a greater or lesser degree, and that the roofing materials generally permitted by the [respondent Shire] may, at particular times, be quite reflective. However, I do not think that justifies the use of zincalume as a roofing material. The fact remains the zincalume is more reflective than the other materials preferred by the [respondent]. Furthermore, the green and reddish hues favoured by the [respondent] serve the Policy purpose of being sympathetic to and blending with the landscape in the Policy area. Zincalume is a more visually intrusive material than the favoured roofing colours."
The applicant's case
30 The applicant disagreed with the effect and application of the landscape policy claiming, in summary, that it was unnecessarily "subjective"; that it did not deal with reflectivity sufficiently "scientifically" enough; and that Zincalume can be and has been favoured as a heritage material (for example, where it appears as galvanised iron). He submitted that numerous galvanised iron structures (including roofs) could be seen throughout the Shire.
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31 The applicant further contended that the policy either led to inconsistency in approvals or that it had been applied inconsistently, as either approval had been given for Zincalume roofs or equally reflective material, such as "Surf Mist" (off white) Colorbond.
32 The applicant produced various photographs (and a DVD) to support his case. The Tribunal observes, at this point, that on some of the applicant's own photographs of his property his roof is significantly visible. Otherwise, the photographs confirm that the property appears to be fairly elevated.
33 The applicant produced some expert evidence in the form of a report from a Mr Scott Nicholson. Mr Nicholson is from Bluescope Steel, a supplier of Zincalume and Colorbond. In Mr Nicholson's report dated 21 June 2005 he notes that solar reflectance "is related to thermal efficiency and not glare". Even so, his solar reflectivity rating for Zincalume is 76% as opposed to off white ("Surf Mist") Colorbond at 65% and "Mist Green" Colorbond at 22%. Although there is a minimisation effect after one and a half years (caused by weathering and the like), Zincalume (61%) still leads off white Colorbond (at 59%). Mr Nicholson's other evidence is considered below.
34 Finally, the applicant drew attention to the fact that his proposed vegetative/tree cover (set out on his landscaping plan) and fading of the roof over time would eventually combine to lessen any impact of the current roof.
Additional evidence
35 A number of issues arose at the first hearing that necessitated the respondent filing further evidence.
36 The first matter deals with comparative properties which, it was suggested, had Zincalume roofs. Summarising this evidence, Mr Daymond testified that no property identified by the applicant as possibly comparative with the applicant's property was truly comparable. This was either because it was a shed and not a house or the particular property identified did not have a Zincalume roof or the structure predated the current policy or it was not in the seen area.
37 Next there was the issue of Lot 211 Butter Gum Close (which is in the "seen area"). The applicant raised this property since it is near to the subject land and has a "Surf Mist" Colorbond roof. The suggestion was that such a colour was sufficiently light so as to have an equivalent impact
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- as a Zincalume roof. Mr Daymond's evidence was that it was possible to tell the difference between a Zincalume and a "Surf Mist" Colorbond roof. He conceded that "Surf Mist" may not have been a suitable roofing colour within the "seen area" but said that "I do not think the fact that there are isolated examples of its use means [that] there is any justification for approving a Zincalume roof".
38 It is convenient here to note that Mr Nicholson concluded his assessment with the following comment:
"Based on our assessment it is unlikely that the amount of glare from the roof [on the subject land] is likely to be objectionable to any of the surrounding residences when viewed from those residences."
39 This assessment may be contrasted with the evidence of Ms Green (the applicant's partner) who made the following statements at the hearing (T: 115) in reference to nearby Lot 211:
"Ms Green: And I - - but, just quietly, I'd like to make the point that, for some years, we will have an authorised roof shining in our eyes.
Mr Hopkin: In Lot 211.
Mr McNab: Which they've admitted, though, with the benefit of hindsight, they ought not to have approved.
Ms Green: But regardless of whether the admission's there, it still doesn't take away the impact on us, and not that … you know, we are friends with those people who have that house, so no detriment to them at all, or their roof, but, you know, we have to put up with that."
40 Mr Daymond did accept that Zincalume was used for roofing and other structures within parts of the respondent's geographical territory, but said that "based on [his] practical experience it is my opinion that Zincalume roofs are more reflective than Colorbond or painted roofs". He also observed that:
"Irrespective of the time of day, weather conditions or angle of the sun, in my experience zincalume is more reflective than other alternate materials. In making [this] statement I do bear in
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- mind that from time to time, for limited periods during the day, and depending on the angle of the sun, other roofing material can be quite glary."
41 His response to the report by Mr Nicholson of Bluescope Steel was that it appeared that the major issue with Zincalume, from the manufacturer's point of view, was the possibility of excessive glare. Mr Daymond's response was that the intention of the landscape policy was:
" … to prevent a building and its materials from standing out in the landscape in an intrusive way. The [landscape policy] is not concerned simply with the occasional episode of harsh glare, but with the more general issue of reflectivity causing a roof to stand out from the landscape. Putting it another way, the issue is not so much whether a neighbour will find glare from the zincalume roof objectionable, but rather whether the zincalume roof does not blend in with the landscape as well as other materials."
42 Mr Daymond also rejected a suggestion that so far as the South Western Highway was concerned any views from there were "transitory". In short, he said that the general area was a scenic outlook and that the landscape policy was attempting to preserve that scenic outlook as far as possible. He said:
"The Policy is intended to avoid the very thing which this zincalume roof causes, in that it stands out in the landscape and captures the eye from the highway. To my mind the fact that the view from the highway to the house is interrupted in parts by trees is not particularly relevant."
Discussion of the case
43 Historically, it seems, there was a time in this State in both Perth and the country towns where corrugated iron was often used, and invariably painted. The problem with this was that it tended to rust over time, and the practice became to use Zincalume or Colorbond roofs. There is, as the evidence shows in this case, a wide range of colours for the latter. Whatever the history of the matter in this State, local authorities around Australia are attempting to regulate the impact of roof glare and visibility. Those practices will vary from local authority to local authority, but the issue raised here is by no means uncommon.
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44 See, for example, Patterson v Redland Shire Council [2003] QPELR 259, at [45], where the trial judge records this exchange between architect and Shire:
"Mr Cottee [the architect who designed the house in question in that appeal] said that he had made enquiries with the Redland Shire Council who told him that the roofing material had to be colorbond and could not be zincalume which was considered to be reflective. He said that the colorbond (off-white) was chosen because of the colour scheme of the building, of a sort of darkish blue with a white trim. He said he considered it to be a lot less glare producing and intrusive than zincalume and that there was a number of examples of houses at Point Lookout that had colorbond (off-white) … "
45 As that case also demonstrates, the science of glare and solar reflectivity testing is not straightforward: see Patterson v Redland Shire Council [2003] QPELR 259 at [42]-[64]; cf Huebner v Hepburn SC [2002] VCAT 442.
46 Opinions on the merits of Zincalume will differ in planning tribunals across Australia. Thus, in Foster and City of Port Adelaide Enfield [1998] SAERDC 453 the South Australian Environment, Resources and Development Court said:
"In this instance, the impact is one of reflection of sunlight off the proposed Zincalume roof. The day the Court inspected the subject land and its surrounds was bright and sunny. At 11.00am or thereabouts, I visited number 17 Fraser Street at which time there was an obvious reflection of light from the eastern facing slope of the pyramid shaped roof above the living/kitchen areas of the residence under construction on the subject land. There was no such reflection from the eastern facing slope of the roof above the rear portion of the dwelling. There is no doubt that this reflection could be discomforting at times; bright enough to be glaring in certain casts of the light. I am not persuaded however that it will be so significant that it contravenes the aforementioned provisions of the Development Plan to the extent that the proposal should be refused. As Mr Hesketh [from BHP] has noted, the reflectivity of Zincalume steel fades over time as it weathers. More to the point, screen planting is proposed along the north and east boundaries of the subject land as an integral part of the overall
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- land/dwelling/landscaping development package; one would assume as much to ensure privacy for its occupants as to minimize glare or other adverse impacts from it. [T]his screen planting is to consist of closely spaced trees about three metres apart all of species to grow to five metres in height."
47 Of course, that case did not involve a policy protecting a "seen area" like the Darling Scarp. It is common practice in Australia and overseas for planning authorities to use planning policy and guidelines to assist in the protection of important environmental features such as the Darling Scarp. It is therefore not surprising that the respondent should use its planning framework to determine that portions of the Scarp have landscape significance, and that they should devise a specific local policy to achieve a measure of protection from certain kinds of development, including the visual impact of various roofing materials.
48 The Tribunal accepts the expert evidence of Mr Daymond. What the respondent Shire is seeking to avoid is a series of reflective roofs silhouetted against the backdrop of the vegetated Scarp. Their local policy, despite some infelicities in its drafting noticed during the hearing, is an attempt to protect the appearance of a natural feature, so far as that is possible short of prohibiting development, say, by way of a reservation or a more stringent planning control.
49 Although there is some difference between the parties as to how prominent the subject land's roof is from the South Western Highway, there is no doubt that the property does fall within the landscape policy "seen area", and that the roof can be detected from the South Western Highway.
50 On the question of the effect of a reflecting Zincalume roof on neighbouring properties, which is an entirely different issue as to whether the roof can be seen from the highway and other places, the opinion of Mr Nicholson from Bluescope Steel may be considered as relevant. As will be recalled, he produced a so called "solar reflectance value" table and it is clear that a Zincalume roof is the leader when compared with off white ("Surf Mist") Colorbond or "Mist Green" Colorbond. Although there is a minimisation effect after one and a half years, Zincalume still leads off white Colorbond.
51 Even if examples could be provided of departure by the respondent Shire from its policies such cases would not justify a further departure. In Smart and Byrne v The Barossa Council [1999] SAERDC 29 (cited with
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- approval in this Tribunal in Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232, at [40] and Sweeney & Anor and Shire of Busselton [2006] WASAT 277 at [39]) the court said, at [9]:
"Trite as it may be to say so, 'two wrongs do not make a right', or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions."
Conclusions
53 Although there are, and will continue to be, thousands of Zincalume roofs across the State, they are clearly the most reflective, when compared to Colorbond roofs. As such, it is an understandable and a legitimate planning aim that the respondent Shire should seek to control the use of Zincalume - almost to the point of prohibition - particularly in circumstances where they are attempting to minimise glare or inroads to visual amenity against the backdrop of a significant natural feature (namely the Darling Scarp) by way of planning policies.
54 For these reasons, both of the applications for review must therefore be dismissed.
55 There is no suggestion that the roof was erected in deliberate contravention of the respondent's planning framework. The Tribunal will therefore set aside the s 10 Notice under the former Act to allow the applicant a reasonable period of time to comply with his obligations, obligations which have been effectively declared above. If the applicant fails to comply with those obligations then the respondent Shire may, of course, give a fresh written direction to alter the development pursuant to the extensive powers conferred upon it under s 214 of the Planning and Development Act 2005 (WA).
Orders
56 The Orders of the Tribunal in both matters heard and determined together are:
1. The decision under review to issue a s 10 Notice under the former Act is set aside and in lieu thereof there will be a decision not to issue the said Notice, without prejudice to
- the respondent's right in due course if necessary to issue a fresh written direction under s 214 of the Planning and Development Act 2005 (WA).
57 2. The applications for review are otherwise dismissed and the decisions under review are otherwise affirmed.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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