IEMMA and SHIRE OF ROEBOURNE

[2006] WASAT 116

IEMMA and SHIRE OF ROEBOURNE [2006] WASAT 116

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 116
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:629/2005	Heard:	17 FEBRUARY 2006
Coram:	MR L GRAHAM (SESSIONAL MEMBER)	Delivered:	12/05/06
No of pages:	18	Judgment Part:	1 of 1
Result:	The application for review is dismissed
Category:	B
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Parties:	ROCCO IEMMA SHIRE OF ROEBOURNE
Catchwords:	Boatport – Building height – Boundary setback – Performance criteria – Acceptable development provisions – Streetscape – Visual amenity – Precedent – Incidental development – Wall height – Ridge height
Legislation:	Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a) Shire of Roebourne Town Planning Scheme No 8, cl 4.4, cl 5.1.5, cl 6.2.3 Residential Design Codes of Western Australia 2002, cl 1.5.2, cl 3.3.1, cl 3.3.1(P1), cl 3.3.1(A1), cl 3.7.1, cl 3.7.1(P1), cl 3.7.1(A1.1), cl 3.10, cl 3.10.1, cl 3.10.1(P1), cl 3.10.1(A1)
Case References:	Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Claude Neon v City of Perth (Unreported; Appeal No 589 of 1986) Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 Kaard v City of Nedlands [2004] WATPAT 96 Moullin and Town of Cottesloe [2002] WATPAT 23 Nil
Orders	1.   The application for is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : IEMMA and SHIRE OF ROEBOURNE [2006] WASAT 116 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 17 FEBRUARY 2006 DELIVERED : 12 MAY 2006 FILE NO/S : DR 629 of 2005 BETWEEN : ROCCO IEMMA

Applicant

AND

SHIRE OF ROEBOURNE
Respondent

Catchwords:

Boatport – Building height – Boundary setback – Performance criteria – Acceptable development provisions – Streetscape – Visual amenity – Precedent – Incidental development – Wall height – Ridge height

Legislation:

Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a)

Shire of Roebourne Town Planning Scheme No 8, cl 4.4, cl 5.1.5, cl 6.2.3

(Page 2)

Residential Design Codes of Western Australia 2002, cl 1.5.2, cl 3.3.1, cl 3.3.1(P1), cl 3.3.1(A1), cl 3.7.1, cl 3.7.1(P1), cl 3.7.1(A1.1), cl 3.10, cl 3.10.1, cl 3.10.1(P1), cl 3.10.1(A1)

Result:

The application for review is dismissed

Category: B

Representation:

Counsel:

Applicant : Mr Michael Rennie
Respondent : Mr David Nicholson

Solicitors:

Applicant : HFM Legal
Respondent : McLeods

Case(s) referred to in decision(s):

Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Claude Neon v City of Perth (Unreported; Appeal No 589 of 1986)
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Kaard v City of Nedlands [2004] WATPAT 96
Moullin and Town of Cottesloe [2002] WATPAT 23

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The application for review by Rocco Iemma (applicant) arises from a decision of the Shire of Roebourne (respondent) to refuse the construction of a boatport at 586 Melak Street in Karratha.

2 The review required an analysis of the available information on building height and boundary setbacks as it related to the Residential Design Codes of Western Australia 2002 (Codes) and the respondent's Local Planning Policy on outbuildings in the residential zone. Streetscape, visual amenity and precedent were also examined.

3 In the view of the Tribunal, there was insufficient relevant information before it from the applicant to allow a fair assessment of the case to build the size of structure contemplated, having regard to either the performance criteria of the Codes or the acceptable development provisions of the Local Planning Policy.

4 Accordingly, the application for review is dismissed.

Introduction

5 The application for review by Rocco Iemma (applicant) on the 28 October 2005, arises from a decision of the Shire of Roebourne (respondent) on 17 October 2005 to refuse a development application to construct a boatport at 586 Melak Street, Bulgarra, in the town of Karratha. The development application was lodged with the respondent on 9 September 2005.

6 The refusal was based on the following reasons:

"1. That Council refuse the request to approve the proposed side boundary setback and height for the proposed boat-port at 586 Melak Street, Bulgarra under the Performance Criteria provisions of the R-Codes on the grounds that the proposal does not meet criteria 5 of the criteria specified under Clause 3.3.1 and would not be consistent with Council's views on the desired height of buildings in the locality under Clause 3.7.1."

(Page 4)

Subject land

7 The subject land is described as 586 Melak Street and is located three lots back from the corner of Melak Street and Warrier Street. It has an area of 701 square metres with a frontage of approximately 23 metres and a depth of approximately 30 metres. Lot 586, which faces south, is positioned between lots 585 and 587 and is directly opposite lot 617 Melak Street.

8 The subject land is zoned "residential" under the Shire of Roebourne Town Planning Scheme No 8 (TPS 8).

9 The matter is also covered under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) which provides for statements of planning policy. The Tribunal is required "to have due regard" to such statements under s 61(1)(a) of the TPD Act.

10 The specific policies relevant to this matter are; the Statement of Planning Policy 3.1; and the Residential Design Codes of Western Australia 2002 (Codes). The subject land has an R20 coding under TPS 8.

11 A provision is also made for local planning policies under TPS 8 (cl 5.1.5) where Council is required to:

"… have due regard to the provisions of any Policy and the objectives which the Policy is designed to achieve before making its decision."

12 When considering an application for development under TPS 8 (cl 4.4), Council is required to have due regard to matters including the following:

"(a) the provisions of this Scheme and any relevant town planning Scheme operating in the district including any regional planning Scheme,

(b) any relevant proposed new town planning Scheme of the Council or any proposed amendment to an existing Scheme operating within the district,

(c) any approved Statement of Planning Policy of the Western Australian Planning Commission,

(Page 5)

(d) any other policy or legislation of the Commission, the Government of Western Australia or the Commonwealth of Australia,

(e) any Policy Statement, strategy or plan adopted by the Council under the provisions of this Scheme,

(f) the preservation of any object or place of heritage significance,

(g) any other considerations which the Council considers relevant to the Scheme objectives in clause 1.5,

(h) any relevant submissions or objections received or sought on the application,

(i) the requirements of orderly and proper planning and the preservation of the amenity of the locality, and

(j) any other planning consideration which the Council considers relevant."

13 Under TPS 8 (cl 6.2.3), the development of land in residential areas is required to conform with the provisions of the Codes.

Respondent's position

14 The position of the respondent is outlined in their Statement of Issues, Facts and Contentions dated 13 January 2006. The statement broadly argues:

a) The height of the proposed boatport, at approximately 4.2 metres, is considered to be excessive given that the maximum height permitted, as of right, under the Codes for Outbuildings is 2.4 metres and under TPS 8 Local Planning Policy (Outbuildings) (LPP (Outbuildings)) is 2.7 metres.

b) Council does not consider that the proposal meets the performance criteria of Element 3.7 (Building Height) of the Codes.

c) The proposed boatport will impact on the adjoining property because of its bulk and nil setback and on the streetscape of the local area.

(Page 6)

d) Council does not consider that the proposal meets the performance criteria of Element 3 (Boundary Setbacks) of the Codes.

e) The proposal does not comply with either the acceptable development provisions of the Codes or the provisions of LPP (Outbuildings).

f) Council contends that the height, bulk and proposed nil side setback of the proposed boatport would have an unacceptable impact on both the streetscape and the amenity of the local area in the vicinity of the development site.

Applicant's position

15 The position of the applicant is outlined in the Statement of Issues, Facts and Contentions dated February 2006. The statement broadly argues:

a) The applicant disputes that the proposed height of the boatport at 4.2 metres is excessive, or that it does not meet the performance criteria of Element 7 (Building Height) of the Codes.

b) That in considering a variation to the Codes under the performance criteria for building height (cl 3.7.1), the relevant matters that need to be considered are that the building height be consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of the adjoining properties including where appropriate:


i) adequate direct sun to buildings and appurtenant open spaces;

ii) adequate daylight to major openings to habitable rooms; and

iii) access to views of significance.


c) The proposed boatport would not significantly affect the adjoining properties in regard to the criteria in [15(b)] above.

(Page 7)

d) The applicant disputes that the proposal does not meet the performance criteria of cl 3.3.1 of the Codes. The relevant criteria relating to side boundaries are that the buildings be set back an appropriate distance so as to:

i) provide adequate direct sun and ventilation to the building;

ii) ensure adequate direct sun and ventilation being available to adjoining properties;

iii) provide adequate direct sun to the building and appurtenant open spaces;

iv) assist the protection of access to direct sun for adjoining properties;

v) assist in ameliorating the impacts of building bulk on adjoining properties; and

vi) assist and protect privacy between adjoining properties.


e) In the applicant's submission, all of the criteria in [15(d)] are met.

f) Five adjoining and nearby owners have consented to the application and variation to the Codes.

g) The respondent has approved boatports of similar design and dimensions in the Karratha area.

h) The respondent's manager of Planning Services recommended that Council approve the code variation and application as lodged in a report to Council dated 17 October 2005.

Planning issues

16 The principal planning issues relate to the size of the proposed boatport in terms of building height and boundary setback and whether its overall appearance would detract from the streetscape and visual amenity of the immediate residential locality. The matter of precedent is also an issue between the parties.

(Page 8)

Building Height

17 The Codes address the matter under Design Element 3.7 – Element 7 (Building Height) and the relevant performance criteria are listed under cl 3.7.1(P1) and outlined in [15(b)] above. They are principally concerned with protecting the amenity of adjoining properties in terms of their access to direct sun, daylight and views.

18 In addition, the acceptable development provisions under cl 3.7.1(A1.1) are helpful in listing a set of height limits that correspond approximately to one storey (category A), two storey (category B) and three storey (category C) development.

19 The matter is also covered under LPP (Outbuildings) under TPS 8 which includes the provisions of Design Element 3.10, Element 10 (Incidental Development) of the Codes in terms of the performance criteria, but also includes some variations and additions to the acceptable development provisions of the Codes; particularly in terms of wall height and ridge height of buildings.

20 On the specific matters of wall height and ridge height, the LPP states under the acceptable development provisions:

"iv. do not exceed a wall height of 2.7 metres; or

exceed a wall height of 2.7 metres but do not exceed a wall height of 3.6 metres, such applications being determined by the Manager Planning Services; or

exceed a wall height greater than 3.6 metres, such applications either being referred to Council for determination or being refused at the discretion of the Manager Planning Services.


v. do not exceed a ridge height of 4.5 metres,

which dimension may be increased to the same extent as any approved application permits a wall height to exceed 2.7 metres.

EXAMPLE

The approval of a 2.9 metre wall height [2.7 m + 0.2 m] would also allow for a 4.7 metre [4.5 m + 0.2 m] maximum ridge height to be approved;

(Page 9)

…"

21 The acceptable development provisions of the Codes provide for outbuildings under cl 3.10.1(A1) that do not exceed a wall height of 2.4 metres and a ridge height of 4.2 metres. There are no allowances in the Codes for increases to either wall height or ridge height as provided for in the LPP (Outbuildings).

Boundary Setback

22 The Codes address the matter under Design Element 3.3, Element 3 (Boundary Setbacks) with the "Objective" being:

"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties."

23 The relevant performance criteria are listed under cl 3.3.1(P1) and are outlined in [15(d)] above.

24 In addition, there are a set of acceptable development provisions under cl 3.3.1(A1) which, if met, would be deemed to comply with the relevant performance criteria.

25 The matter is also covered under the LPP (Outbuildings) which conforms with Element 3 of the Codes in requiring a 1.5 metre setback from the side boundary.

Streetscape and visual amenity

26 This matter is covered by the Codes under Design Element 3.2 – Element 2 (Streetscape) but also under the performance criteria for outbuildings under cl 3.10.1(P1) which states:

"P1 Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties."

Precedent

27 Both parties address the question of precedent, with the applicant listing a number of residential properties with boatports; some being larger than the current proposal. The respondent argues on the grounds that the Policy is specifically designed to ensure that boatports do not
(Page 10)

detract from the streetscape, and that most existing boatports in residential areas were approved prior to the LPP (Outbuildings).

Assessment of proposal

The proposal

28 The reason for the boatport is described in the witness statement of the applicant, dated 14 February 2006, as being for a recently purchased (July 2005) twin hull boat with a purpose built three axle trailer. On the trailer, the boat is 3.9 metres off the ground to the top of the fishing rod holder.

29 It is argued that the boatport is needed to protect the boat from very high temperatures in summer, and also from the effects of cyclones from September to April.

30 The applicant contends that there are no boat storage facilities in Karratha and that the only option to protect the boat from the elements would be to buy or rent a large shed in the light industrial area, which he cannot afford.

31 It is claimed that there are larger boatports with higher post heights in other residential areas of Karratha, with one structure having recently been completed at 351 Samson Way.

32 The Tribunal was provided with photographic evidence of a number of boatports, including 351 Samson Way, which appears as an industrial size shed located towards the front boundary of the property with supporting posts on the side boundary. The height of the structure is well above the top of the boat shown in the photograph.

33 What is intended by the applicant is to construct a lightweight, steel-clad, roofed structure supported by side boundary posts but with no walls on the side boundary. It is proposed at 11 metres long by 5.9 metres wide, with a setback from the front boundary of the property of 6.2 metres and post heights of 4.1 metres. The roof sheeting is 0.75 metres from the side boundary.

34 It is argued that as the structure has been designed by a qualified architect/engineer, and will be built by a licenced builder, that it will be stronger and visually more appealing than other similar structures in Karratha.

(Page 11)

35 It is also clear from the photographic evidence presented to the Tribunal that some boatports in Karratha are of poor design and cheap construction and a definite blight on the streetscape. In the view of the Tribunal, a policy that incorporated design standards for boatports in sympathy with the residential surroundings would be of great value to the Shire in assessing new applications.

The Codes

36 The primary intent of the Codes is to promote attractive streetscapes and safer streets, to minimise the extent of overlooking and overshadowing of neighbouring properties and, where matters of a local nature demand particular planning controls, it is intended that the Codes be complemented by local planning policies adopted under the town planning scheme. That is precisely what has occurred with the LPP (Outbuildings) under TPS 8.

37 The way in which the Codes operate, is that the aim or objective of the design element is stated and a set of performance criteria is provided which must be satisfied if the objective is to be met. Also, a set of acceptable development provisions related to the performance criteria is established.

38 The acceptable development provisions provide a means by which development is "deemed-to-comply" and provide a speedy and certain path to approval. The performance criteria allow the possibility of other, and perhaps more innovative, ways of achieving an acceptable outcome.

39 In Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 the operation of the Codes is expressed in this way (at [19]):

"As the Codes themselves make clear and as this Tribunal has observed on other occasions, the starting point is to have regard to the objective and then the performance criteria. Acceptable development represents examples which of themselves are deemed to meet the relevant performance criteria."

40 As further explained in cl 1.5.2 of the Codes, there is a clear choice for applicants to select whether their development proposal should be judged by way of the performance criteria or by way of the acceptable development provisions. Where the latter course is chosen and a proposal is unable to meet one or more provisions, discretion will be sought from
(Page 12)

the Council against the specific performance criteria associated with the areas on non-compliance.

41 In this particular case, the matter went before the Council for the following purpose:

"For Council to determine a request from the owner of 586 Melak Street Bulgarra under the Performance Criteria provisions of the Residential Design Codes of WA …"

42 The refusal that was given was on the grounds that the proposal did not meet criteria 5 ("assist in ameliorating the impacts of building bulk on adjoining properties") of cl 3.3.1 of the Codes and would not be consistent with Council views on the desired height of buildings in the locality under cl 3.7.1 of the Codes.

43 The matter was explained in the report to Council in this way on the question of boundary setbacks:

"It is not considered that the proposed boat-port would significantly impact the adjoining property with regard to criteria 1, 2, 3, 4 or 6. However it is likely that the proposal would visually impact on both the adjoining properties and the streetscape and as such would not assist in ameliorating the impacts of building bulk on adjoining properties as specified under Criteria 5."

44 The difficulty the Tribunal has with this assessment is that there appears to be no base information from the applicant on which such a conclusion could be made by the respondent. At least there is no information before the Tribunal, and it is certainly not sufficient on the question of boundary setbacks for the applicant to state in the Statement of Issues, Facts and Contentions: "In the applicant's submission all of these criteria are met".

45 In this particular case, it would not have been a difficult exercise, by way of shadow diagrams, to show the effect of overshadowing of the proposed development on the adjoining properties in both summer and winter, in a situation where the subject land faces due south and the sun is always to the north. Such information, together with an attempt to reduce the height of the structure, would have allowed a more comprehensive assessment of the proposal by the respondent.

(Page 13)

46 As explained in Claude Neon v City of Perth (Unreported; Appeal No 589 of 1986), the onus is on the applicant to establish that the proposal should be approved.

47 Again in Kaard v City of Nedlands [2004] WATPAT 96 at [172]

" … no comprehensive or substantive argument has been made available to this Tribunal to allow it to test the proposal against the Performance Criteria and determine whether there has been compliance with those Criteria or not."

48 That situation is repeated again in this case with little information available from the applicant to test the proposal against the performance criteria.

49 In the witness statement of Mr Robert Brian Sharkey, a qualified town planner and the manager of Planning Services at the Shire of Roebourne, he argues the case for the respondent, not only from the point of view of the performance criteria, but also the acceptable development provisions.

50 In the case of the latter, he argues that under cl 3.3.1(A1) of the Codes, the required setback is 1.5 metres from the side boundary, but with a nil setback to the supporting posts and a 0.75 metre setback to the roof sheeting, the proposal does not comply.

51 However, on the question of building height, Mr Sharkey argues that based on the acceptable development provisions of the LPP (Outbuildings):

"In my view, it would be consistent with the Policy to approve applications exceeding a wall height of 3 m and ridge height of 4.5 m where it is established that the proposed boat-port does not detract from the streetscape or the visual amenity of residents or neighbouring properties …"

52 What is clear to the Tribunal from the statement, is that Mr Sharkey has combined both the acceptable development provisions and the performance criteria of the Codes in reaching this conclusion.

53 However, there is no information before the Tribunal that the applicant ever chose to go down the acceptable development provisions path and, if the matter were to be considered under the performance criteria of the LPP (Outbuildings) alone, all that would need to be proven

(Page 14)

would be that the proposal did not detract from the streetscape or the visual amenity of residents or neighbouring properties.

54 This point is made clear in the LPP (Outbuildings) under the policy provisions for carports, boatports and garages:

"An Outbuilding shall, in addition to meeting all other applicable provisions of the R-Codes, satisfy the Performance Criteria by either conforming to the Acceptable Development provisions of Section 3.10.1 (Outbuildings) of the R-Codes set out hereunder including the variations and additions, which are highlighted in bold type, or by the submission of a development proposal for approval by Council that fully addresses the Performance Criteria."

Streetscape

55 The matter of Streetscape is addressed in Design Element 3.2 – Element 2 (Streetscape) of the Codes:

"Several factors that are important to streetscape and local character do come within the scope of residential development control … These include the appearance of buildings, street setbacks, lot frontages, setbacks between buildings, driveways, and fences, walls, carpets, and other development within the street setback area."

56 As explained in Moullin and Town of Cottesloe [2002] WATPAT 23:

"20. The mistake made by the Town is to require that the streetscape be preserved by a rigid adherence to the existing historical elements. This is a mistake because the proper task of the Council is to determine whether the overall amenity is preserved. It is possible that this may encompass developments that do not conform to the existing historical elements yet still allow the amenity to be maintained. It may be that what is proposed will be congruent with the existing streetscape even though it introduces a new element or architectural device."

57 Once again, the difficulty that the Tribunal has is that there is no photographic evidence before it of the existing streetscape in Melak Street
(Page 15)

and it is not possible to conclude whether the proposed development would detract from it, or the visual amenity of residents or neighbouring properties.

Precedent

58 As explained in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988), precedent is not treated as a "stand alone" argument and is but one factor to be taken into account in assessing a proposal.

59 What is clear is that the applicant has argued that larger boatports have been constructed in residential areas elsewhere in Karratha. This point is acknowledged by Mr Sharkey at par 44 of his witness statement:

"44. As also recognised in my report, some boat-ports of a comparable size to that proposed in the Application have previously been approved in Karratha. However all of those buildings were approved many years ago and certainly no boatport or outbuilding of similar size to that proposed in the Application has been approved since Council adopted Local Planning Policy 'Outbuildings in the Residential Zone' in 2004. There is thus a reasonable basis for not viewing those earlier approved buildings as either relevant precedents in the consideration of this Application or as indicative of current standards of amenity."

60 The matter was also addressed in the witness statement dated 6 February 2006 of Mr David Hay, a qualified architect and Councillor for the Shire, in reference to previous approvals:

"11. … Unfortunately, such an approach was not always taken in the past by previous Councils, and the result is a small number of oversized boatports in the town that reflect poorly on amenity. I don't believe that such oversized structures, which are clearly inconsistent with policy requirements and an example of poor planning practice, should set the standard for the future residential amenity of our town."

61 The Tribunal believes that although the precedent argument is helpful, the proposal must still be judged on its particular merits.

(Page 16)

62 However, it must be pointed out that a recent approval in 2005 to a combined boatport, carport and storage area in a residential locality at 351 Samson Way, with a 3.5 metre wall height, would be difficult to justify on amenity grounds; albeit being opposite a recreation and drainage reserve as opposed to being totally surrounded by residences.

Conclusions

63 This application for review requires an assessment of the merits, or otherwise, of a boatport being constructed on the subject land.

64 The provisions in the Codes to assist this assessment are at Design Element 3.10 – Element 10 – Incidental Development but, as explained in the Codes, if a building is to be exempt from the standards of the dwelling on-site, it should be relatively small in area and relatively low in height. That is not the case here with the proposed boatport being approximately 11 metres long, 5.9 metres wide and 5.1 metres to the top of the roof ridge.

65 In order to accommodate larger structures than contemplated by the Codes, Council produced its LPP (Outbuildings) in 2004, which incorporates the cl 3.10.1(P1) of the Codes, but adjusts some of the acceptable development provisions to accommodate the special circumstances at Karratha. The most important of these has been to increase the wall height from 2.4 metres to 2.7 metres and the ridge height from 4.2 metres to 4.5 metres with a seemingly open-ended provision to allow further increases to the wall height, and the resultant ridge height, subject to the approval of Council.

66 There is currently an amendment to the LPP (Outbuildings) in train to delegate authority to the manager of Planning Services to approve developments with a wall height to 3.6 metres and anything higher to be approved by Council.

67 An important provision in the LPP (Outbuildings) is that boatports are to meet other applicable provisions of the Codes, even though those provisions are there essentially for residential development and not incidental structures such as boatports. These provisions considerably widen Council's powers and have allowed it to take into account, in this case, such matters as building height and boundary setback with their associated performance criteria and acceptable development provisions.

68 What is now occurring in Karratha is the purchase by residents of a growing number of larger and more expensive boats and, in the absence of

(Page 17)

storage facilities other than hard-standing or moorings on the water, it is inevitable that owners will want to protect their asset by way of larger boatports on residential properties which have room for such developments.

69 However, in the face of this trend, the view of the respondent is that, although not opposed to boatports, they are concerned with their growing physical scale and are anxious to protect existing streetscapes and residential amenity. This is a perfectly reasonable position to take, but it is hard for the Tribunal to conceive how much the current open-ended LPP (Outbuildings) can assist in controlling larger developments unless specific height limits are incorporated into TPS 8. There is certainly no "line in the sand" at 3.6 metre wall height, as intimated by Mr Hay in his evidence at the hearing under cross-examination.

70 In assessing this matter, there is no information before the Tribunal that the applicant made a choice that the proposal be assessed against the acceptable development provisions or the performance criteria of Design Elements 3, 7 and 10 of the Codes, which are very much concerned with ensuring that neighbouring properties still have direct access to sun and daylight when the development is completed, and that the development will not detract from the streetscape.

71 What is known is that the respondent's refusal was based essentially on the performance criteria of Design Elements 3 and 7 of the Codes, but there is no base information before the Tribunal from either party that substantiates the applicant's case or justifies the respondent's decision other than in a superficial way. However, the onus is on the applicant to prove his case with information that can then be properly assessed by the respondent.

72 In the absence of such information before the Tribunal, the content of which is alluded to in [45] and [57] above, it is not possible to fairly determine the matter.

73 What is clear from evidence provided at the hearing by the applicant, is that he has already modified his plans from those the subject of this review, to reduce the height of the proposed boatport structure. It would make sense in these circumstances for a new application to be lodged with Council if the applicant still wishes to proceed. The applicant should decide whether he wants his proposals assessed under the relevant performance criteria or the acceptable development provisions and

(Page 18)

provide the corresponding information to allow a proper assessment to be made by Council.

74 The conclusion of the Tribunal is that no comprehensive or substantive argument has been made available to the Tribunal by the applicant to allow it to fairly test the proposal against either the relevant performance criteria or the relevant acceptable development provisions of the Codes.

Orders

75 For the foregoing reasons, the orders of the Tribunal are as follows:

1. The application for review is dismissed.

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.


___________________________________

MR L GRAHAM, SESSIONAL MEMBER