Jensen and City Of Canning
[2009] WASAT 137
•14 JULY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JENSEN and CITY OF CANNING [2009] WASAT 137
MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: 2 JULY 2009
DELIVERED : 14 JULY 2009
FILE NO/S: DR 99 of 2009
BETWEEN: LEIGH JENSEN
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Development application - City of Canning - Outbuilding comprising roof structure over two sea containers - Condition limiting approval to 24 months - Uncertainty as to impact on amenity - Whether development is of a substantial nature - Whether proposed development will be used for purposes causing nuisance - Whether proposed development will be visually acceptable - Whether a condition imposing a time limited approval is reasonable
Legislation:
City of Canning Town Planning Scheme No 40, cl 5.2(b)
Metropolitan Region Scheme
Residential Design Codes of Western Australia (2008)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
The application for review is allowed
The decision of the respondent is varied to delete its condition to limit the approval to 24 months
Category: B
Representation:
Counsel:
Applicant: Mr J Algeri (Acting as Agent)
Respondent: Mr S Bain (Acting as Agent)
Solicitors:
Applicant: Algeri Planning & Appeals
Respondent: SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The respondent granted approval for an outbuilding on a kennel property subject to a limitation of 24 months in order to review its impact on the amenity of the locality. The respondent had concerns that the proposed development may be incompatible with the character of the area and the streetscape. There were also concerns that an approved home occupation business use of the premises may expand and cause unforeseen nuisance.
The applicant sought a review of the condition restricting the approval to 24 months.
The applicant argued that the proposed development was a substantial investment, that its location, the nature of its physical features, proposed low key usage and likely impact on amenity are all known factors to be taken into account in the respondent's decision now. It is therefore unreasonable to limit the approval to 24 months and then to review and possibly terminate the approval.
The Tribunal considered the prospect that future usage of the premises may cause nuisance through unauthorised activities or expansion of the approved home occupation business. The remedy to these causes of nuisance lies in the power of the respondent to initiate legal action to restrain or terminate unlawful use. The Tribunal was satisfied in the meantime that the proposed nature of usage of the outbuilding was unremarkable and benign. It was therefore not considered appropriate to time limit the approval to achieve compliance with the approved use of the premises.
The Tribunal noted the substantial nature of the proposed development and the comprehensive extent of the known physical characteristics of the development which the respondent had approved. The only uncertain variable to the visual aspect of the development was the effectiveness of landscaping. The Tribunal was satisfied, however, that landscaping efficacy was not critical, in terms of visual amenity, to the extent of ultimately limiting or terminating the approval. In such circumstances, it was again deemed unreasonable to restrict the approval to 24 months.
The application for review was therefore allowed and the requirement to limit the approval to 24 months was deleted.
Introduction
This is an application for review of a condition imposed by the City of Canning (respondent or City) upon its decision to approve an outbuilding to be located on Lot 8 (No 12) Fraser Road, Canning Vale (subject land).
The proposed outbuilding comprises a roof structure erected over and between two sea containers.
The application for the outbuilding was submitted to the respondent on 27 November 2008.
On 13 January 2009, the respondent deferred consideration of the application for two months pending a review of the use of sea containers and the preparation of a policy to deal with the use of sea containers in the City.
On 16 March 2009, Mr Leigh Jensen (applicant) lodged an application for review of the respondent's decision with the Tribunal.
By order of the Tribunal on 1 April 2009, pursuant to s 31 of the State Administrative Tribunal Act2004 (WA), the respondent was invited to reconsider its decision.
Following reconsideration, the respondent, on 28 April 2009, decided to conditionally approve the application for the outbuilding for a period of 24 months.
On 7 May 2009, the Tribunal ordered that the issue in dispute, and subject of this review, relates to the condition imposed by the respondent limiting the approval of the outbuilding to 24 months only.
The proposal and its context
Fraser Road, Canning Vale is a residential and kennel area characterised by well‑established houses and kennel facilities on lot sizes generally of about 4,000 square metres in area.
The subject land is a rectangular property with a width of 39 metres, a depth of 102.75 metres and an overall area of 4,000 square metres.
A dwelling and freestanding carport are located on the front portion of the lot. Two substantial kennel structures of 108 square metres and 41 square metres, respectively, occupy the rear portion of the property.
The proposed development comprises two 12 metre long sea containers lying parallel to each other about 4 metres apart and overarched by a simple shallow‑pitched, gable‑ended roof structure. The gap between the containers will be gated front and rear. The area of the resultant outbuilding structure will be 110 square metres.
The outbuilding is to be located about 38 metres back from the front boundary, offset towards the side boundary and behind the building line of the house and carport.
The plans of the development indicate that one sea container will be used wholly for personal effects and tool storage. The other sea container will partly be used for personal belongings and tool storage. The remaining two‑thirds of the space would be utilised for the purposes of a previously approved home occupation conducting the business of storage and wholesaling of dog biscuits. The roofed space between the two containers is identified as a workshop.
Statutory and policy instruments
The subject land is zoned 'Rural' under the Metropolitan Region Scheme and 'Special Residential/Kennels R2.5' under the City of Canning Town Planning Scheme No 40 (TPS 40).
TPS 40 sets out the following general objectives:
(a)to zone and classify the land within the City for the purposes described in the Scheme so as to promote the orderly and proper development of land, and make suitable provisions for the use of land within the City;
(b)to secure the amenity, health and convenience of the City and the inhabitants thereof;
…
(e)to make provision for other matters incidental to town planning and land use.
The development objective for the 'Special Residential' zone described at cl 5.2(b) of TPS 40 is:
[T]o promote the establishment of attractive residential neighbourhoods and to ensure that acceptable levels of safety, privacy and amenity are provided through the application of basic design controls.
The Residential Design Codes of Western Australia (2008) (Codes) set out Performance Criteria and Acceptable Development Standards for outbuildings.
The relevant performance criterion requires that outbuildings do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
The Acceptable Development Standard provides, amongst other things, that outbuildings should not exceed 60 square metres in area or 10% in aggregate of the site area, whichever is the lesser.
The respondent has prepared a Draft Sea Container Policy (Draft SC Policy) which was adopted on 26 May 2009 for the purpose of public advertisement.
The Draft SC Policy applies:
[T]o any Sea Container stored on properties developed or zoned for Residential purposes … Sea Containers are considered as development which requires approval under the Town Planning Scheme.
Provisions of the Draft SC Policy include:
2.1Sea Containers have the potential to adversely impact on the visual amenity of residential areas and are therefore not acceptable on properties developed for Residential purposes under 2000sqm. However, a Sea Container can be temporarily located on private land developed for Residential purposes for the duration of the building construction.
2.2One Sea Container may be permitted to be stored on properties developed for Residential purposes, subject to the following conditions:
(i)The container shall be no longer than 6 metres …
(ii)The container shall not be located in front of the building setback and shall be screened from view of the street, including secondary streets.
(iii)The container shall be set back from the rear boundary in accordance with the requirements of the current Town Planning Scheme.
(iv)The container shall be painted in a colour that is similar to or complementary to the colour of existing buildings on the property, or the prevailing landscape.
(v)The container shall not be used for any commercial or industrial purpose.
The respondent's decision
The respondent's decision to approve the proposed outbuilding was expressed in the following terms:
Council RESOLVE, pursuant to Clause 2.3.9 of the City Zoning Scheme (Town Planning Scheme No 40), and in response to the Direction from the State Administrative Tribunal relating to the application for Partial Retrospective Approval for a period of 24 months for patio over Sea Containers at 12 Fraser Road (Lot 8), Canning Vale, to grant approval, subject to the following conditions:
(i)Council to initiate, after the expiration of 24 months, a review into the impact of this approval on the local area, including any amenity issues or increase in traffic movements (detrimental), with a further report then presented to Council.
(ii)The finished floor level of the structure shall not exceed 500mm above the existing natural ground level at any given point.
(iii)Prior to the issue of a Building Licence, the Applicant shall provide details of the proposed colours of the external materials of construction to the City's satisfaction, having regard to the provisions of Clause 8.4.1 of the City of Canning Town Planning Scheme No 40.
(iv)Prior to the issue of a Building Licence, the Applicant shall submit a plan detailing landscaping between the proposed structure and the side property boundary. The plan will need to include landscaping which will effectively screen the proposed structure, and all landscaping on site will need to be provided and maintained in accordance with the approved landscaping plan.
(v)Standard conditions:
The proposed development is to comply in all respects with the submitted plans approved on 28 April 2009 and stamped accordingly.
Storm water from all roofed and paved areas to be collected and contained on site.
The respondent's argument
The respondent's argument was based on doubts that the proposed development was appropriate for the locality and that it may impact on the amenity of the area. Accordingly, it was reasonable to grant planning approval for a period of 24 months only in order to further assess the impact on the amenity of the locality.
Mr G Barry, a councillor of the City, appeared as a witness for the respondent.
Councillor Barry presented evidence of the history of recent decisions of the respondent in relation to the subject land.
A home occupation permit was granted in March 2007 for the storage in, and wholesaling of dog biscuits from a sea container located on the premises.
An application for construction of a roof over two sea containers on the premises was refused by the respondent in November 2008.
In regard to this decision, Cr Barry cited his concerns as to the possibility of the home occupation permit extending within the sea containers beyond the 20 square metre limit allowed. He also expressed some difficulty with the intended function of the proposed structure, given that the application was described as a carport covering the two sea containers. Additionally, Cr Barry was concerned that the sea containers had been placed on the land without planning approval and that granting planning consent could be seen to reinforce what appeared to be a planning breach.
The applicant lodged a fresh application on 27 November 2008, which was considered on 13 January 2009. The application was deferred in order to allow a comprehensive review of sea containers in the City and the possible preparation of a policy to deal with the use of sea containers.
The Draft SC Policy was prepared and presented to the Council on 24 March 2009.
Councillor Barry advised that the application was then further considered on 28 April 2009. It was decided to approve the application for 24 months in order to allow the Council to review the impact of the approval on the local area, including amenity and traffic movement issues.
Councillor Barry described the area as residential in character and that he had doubts as to whether the development would fit in. He was aware of complaints about sea containers.
The respondent's second witness, Mr S Bain, a qualified and experienced town planner, advised the Tribunal that the proposed development was inconsistent with the objectives of TPS 40.
Mr Bain described the proposed development as a very large shed/carport structure measuring 110 square metres in area. This is significantly larger than a carport would be expected to be in a residential locality.
Due to its size, the proposed carport will impact on the amenity of the area which is otherwise characterised as a pleasant residential area with single houses on large lots. There are no other examples of such large carports.
Mr Bain therefore concluded that the proposed development would be inconsistent with the existing amenity of the area.
Mr Bain referred to the Draft SC Policy for the control of sea containers adopted for advertising by the respondent. Mr Bain noted that the proposed development would be in conflict with the policy on the following counts:
•The policy contemplates the allowance of only one sea container, not two as this application proposes.
•The policy would only allow containers up to 6 metres in length, not 12 metres long as this application proposes.
•The policy proposes a requirement for screening from view from the street. The proposed development cannot be adequately screened from the street because of its location, bulk and elevation.
Mr Bain was of the opinion that the Draft SC Policy was being seriously entertained and should be given a high degree of weight by the Tribunal in its consideration of this matter.
With regard to the Codes, Mr Bain pointed out that the proposal did not meet the Acceptable Development Standards for outbuildings because it exceeds 60 square metres in area. The proposal also failed to meet the relevant performance criterion, in that outbuildings should not detract from the streetscape or visual amenity of the neighbourhood.
Although of the view that the application ought not to have been approved, Mr Bain expressed his further opinion that the approval of the application for 24 months only was reasonable in order to allow the impacts and appropriateness of the development to be assessed.
Mr Bain noted that the structure could be easily removed and there would be no unreasonable costs borne by the applicant.
The applicant's argument
The applicant argued that there was an absence of well considered reasons to time limit the proposed development.
Mr Jensen, the applicant and owner of the subject land, appeared as a witness in support of the proposal.
Mr Jensen described the proposed structure incorporating the sea containers and gable roof in some detail, including reference to the installation of windows, gates, interior stud wall and additional doors. The resultant structure will be of a permanent nature, similar in size to other sheds in the area. The total cost will be approximately $30,000.
Mr Jensen advised that existing vegetation will frame the development and will substantially screen it from view of the street and neighbouring residents. Neighbours have supported his proposed development.
The proposed development will not occasion any additional traffic onto the local road system. There will be no change to the conduct of the approved business on the premises.
Mr Jensen was of the view that the only contention was the built appearance of the proposal, just like any other outbuilding or dwelling application. There is no reason why its visual impact could not be assessed now, rather than in 24 months time.
The costs of construction are otherwise too high to incur, with the possibility of having to remove the structure in two years time.
Mr J Algeri, a qualified and experienced town planner, also appeared as a witness and provided evidence in support of the application.
Mr Algeri suggested that the objectives of TPS 40 provided little guidance and insufficient basis for the respondent to apply a 24‑month assessment period for the application.
With respect to the Codes, Mr Algeri argued that the proposed development complied with all but one of the relevant acceptable development criteria. The development has an area of 110 square metres, thus exceeding the acceptable development criterion limit of 60 square metres or 10% of the site area. In this regard, Mr Algeri submitted that the large (4,000 square metre) lot sizes of the area, the nature and purpose of the kennel zone and the presence of other large outbuildings in the locality should be taken into consideration in accepting the proposed outbuilding on the subject land.
Mr Algeri expressed the view that the proposal should not have a negative impact from the street or from adjoining properties. The proposed structure would be well screened and would be consistent in bulk and scale with the existing streetscape character. Other large scale sheds are present on a majority of lots in the area.
With regard to the Draft SC Policy, Mr Algeri observed that it is unknown when the policy will be adopted or what the final provisions will be. As the policy is yet to be advertised, it should be afforded no weight by the Tribunal in its consideration of the review. In any case, the sea containers involved in this application are part of an integrated permanent structure and are not distinguishable as separate entities.
Mr Algeri acknowledged that there were examples of time limited approvals allowed by the Tribunal, but that these were designed to limit or monitor certain activities or uses of land that could affect local amenity over time. In contrast, this application relates to a proposed building, not a change of land use, and there is therefore no reason why the merits of the built form cannot be assessed at this time.
Analysis
While it has been argued, in part, that this proposed development should not have been approved at all, on grounds of the anticipated impact on amenity, it cannot now be disregarded that the proposal has been approved by the respondent and that the question at issue now is the reasonableness of the 24‑month time limit on that approval.
It does not appear to be appropriate or constructive for the Tribunal to revisit questions of consistency with town planning scheme objectives or the performance criteria of the Codes. These were matters already considered by the respondent in the context of professional advice from Council officers before making its decision to conditionally approve the proposed development. Notably, the Council's officers had concluded that the application merited approval when measured against the objectives of TPS 40 and the relevant Code provisions.
Having regard to the original assessment of the Council's officers, comparison of the evidence of the witnesses for the respondent and the applicant on the physical nature of the proposed development, and the profoundly important fact that the respondent has conditionally approved the application, the Tribunal accepts that the proposed outbuilding could reasonably be considered to be capable of acceptable compliance with TPS 40 and Code standards.
It remains to consider whether it is reasonable to monitor and review the capability of compliance over a period of two years and whether the approval should be fettered with the prospect of possible termination.
As to the relevance of the Draft SC Policy to this application, the Tribunal would ascribe little or no weight to the policy, given that it is at a formative stage and is yet to be advertised for public comment. It is also notable that the policy appears to be directed at the amenity impacts of the storage of freestanding sea containers on residential properties, rather than providing guidance for the development control of a composite integrated structure of the kind the subject of this review.
The respondent's arguments in support of the 24‑month review period appear to be based on two concerns. Firstly, that the building might be used for unauthorised extension of the home occupation business, or for other purposes, to the detriment of the amenity of the area. Secondly, that the visual impact of the proposed development on local amenity might be shown to be unacceptable.
As to the first contention, there is nothing to indicate that the proposed outbuilding is to be used for anything other than storage purposes and the continued conduct of the approved home occupation business. The applicant has explained the nature of the business as the storage and wholesaling of dog biscuits. The owner of the premises delivers biscuits to other kennel operators in the locality, generally on a weekly basis. There is no anticipated change to the scale and frequency of activities associated with this business and no change in traffic generation.
The Tribunal notes that the nature of such a home occupation business appears to be one that might reasonably be expected in a kennel area and is therefore unremarkable. The Tribunal accepted that the business activities were of a relatively benign nature and unlikely to be a nuisance in the locality. In the event that the nature of the business changed in terms of intensity and scale beyond that originally approved, the respondent would have legal remedy to restrain or terminate any unlawful use which might cause unreasonable impact on the amenity of the area.
Other than the home occupation business, usage of the proposed outbuilding is intended to be confined to storage and workshop activities. No evidence has been submitted that these activities will generate any negative impact on local amenity.
The Tribunal is satisfied that there are no peculiarities in the nature of usage of the proposed outbuilding, such that it might cause nuisance or detrimental impact to the amenity of the area. On these grounds, there is no reasonable warrant to limit the approval of the proposal for further review at some future time.
With respect to the second contention that the visual impact of the proposed development could be seen to be unacceptable, the Tribunal notes the respondent's argument suggesting that the amenity impacts and appropriateness of the development can be assessed over the two‑year period.
The Tribunal has some difficulty with this approach. The proposed development is of a substantial nature, to be constructed at some considerable expense on the domestic scale. It would seem that the only possible variable factor in terms of the outcome of visual appearance of the proposed development is the effect of landscaping. All other physical aspects of the proposed structure are known now or prescribed. Given that the respondent has approved the development in the full knowledge of its location and physical circumstances, in the same manner as it would approve a dwelling or any other substantial building, it seems unusual to distinguish this development by applying a time limit in which to review its visual effect on local amenity.
Some doubt was cast by the respondent as to the practicality and effectiveness of landscape screening of the development. A viewing of the site identified that the adjacent property was heavily vegetated along the side boundary and was already well screened from view of the proposed development. Because of its elevation, the aspect to the street was seen to be more prominent, although the lower proportion of the proposed structure would be screened by an existing metal fence across the front of the property. However, the proposed development is set diagonally behind the existing residence on the property which otherwise substantially dominates this section of the streetscape.
In the circumstances described, the Tribunal is satisfied that while landscaping is appropriate as a measure to assist in softening the prominence of the proposed development and improving the pleasantness of the immediate surrounds, it is not overly critical to the quality of the streetscape or the interests of adjoining properties.
Accordingly, the Tribunal rejects the notion that there would be a legitimate reason to review the permission for such a substantial development in two years time, based on the efficacy of landscape screening to limit any visual impact on the locality.
There being no other variables to the physical appearance of the structure, the Tribunal concludes that there is no reasonable basis for a time limited approval of the proposed development.
Conclusion
Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to impose a restriction on its approval to allow an outbuilding (otherwise described by the respondent as a patio over sea containers) at the subject land, limiting the approval to a period of 24 months, should be upheld. Accordingly, that part of the decision to impose the 24‑month time limit should be set aside and condition (i) of the approval should be deleted.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent, made on 28 April 2009, to grant conditional development approval for an outbuilding, described as a patio over sea containers, at Lot 8 (No 12) Fraser Road, Canning Vale is varied as follows:
(i)Reference in the decision of the respondent to the limitation of the approval for a period of 24 months is deleted.
(ii)Condition (i) of the approval is deleted.
I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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