JOHN CRANSTON and SHIRE OF SERPENTINE-JARRAHDALE
[2019] WASAT 19
•11 APRIL 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JOHN CRANSTON and SHIRE OF SERPENTINE-JARRAHDALE [2019] WASAT 19
MEMBER: MR S WILLEY, MEMBER
HEARD: 5 MARCH 2019
DELIVERED : 11 APRIL 2019
FILE NO/S: DR 260 of 2018
BETWEEN: JOHN CRANSTON
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Development application - Land use classification - Whether use classified as Rural use or Equestrian Activity - State planning policy weight to be given - Amenity - Tests for amenity - Amenity impacts needed to be weighed and balanced - Locality - Impact on views - Views as a relevant planning consideration - Operational needs - Perceived impacts of development
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 64, cl 67
Planning and Development Act 2005 (WA), s 68, s 33(1)(b), s 241(1), s 241(1)(a),
Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2, cl 1.6(b), cl 3.2.4, cl 3.3.2, cl 5.4.2, cl 5.10.1, Table II, Table III, Table IV, Appendix 1
State Administrative Tribunal Act 2004 (WA), s 24, s 27(1), s 27(2), s 32(2)
Result:
The application for review is dismissed
Summary of Tribunal's decision:
Mr John Cranston seeks approval for the development of a horse arena and grandstand (in the form of a large shed) to be used for the training of horses (the Proposed Development). The horse arena would be rectangular in shape with dimensions of 64 metres by 24 metres and the associated grandstand has dimensions of 16 metres by 3 metres. The horse arena will have a 6.6 metre wall height and an overall height of 10 metres. The total floorspace of the Proposed Development is 1,584m2.
The land (Lot 5) is zoned Rural in the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 and has an area of (approximately) 21.2 hectares. The Proposed Development will be set back 9 metres from the lot which adjoins its southern boundary (Lot 6) and (approximately) 35 metres from the dwelling on Lot 6.
The Shire of Serpentine-Jarrahdale (Shire) refused the Proposed Development for two reasons. First, the Proposed Development would result in an unacceptable impact on the amenity of the locality. Second, the Proposed Development would be inconsistent with the rural character of the locality. The Shire's refusal was on the basis that the Proposed Development did not comply with cl 67(m) and cl 67(n) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
The issues before the Tribunal were the impact of the Proposed Development on the general locality and specifically on Lot 6.
The Tribunal found that the amenity of the locality was that of a productive agricultural area where land was put to a range of rural uses. A necessary incident of productive rural uses is the appearance of outbuildings in the form of sheds, stables and water towers in the landscape.
The Tribunal found that the Proposed Development would be consistent with the rural character and amenity of the general locality. The Tribunal found that the Proposed Development would be screened, to some extent, by vegetation along the South Western Highway (Highway) and was placed such that its shortest aspect (24 metres) faces the Highway. Whilst the Proposed Development would be visible from the Highway and more generally, the presence of substantial structures in the landscape of a productive rural area was not, of itself, unreasonable.
However, the Tribunal found that the Proposed Development was unacceptable in terms of its impact on Lot 6. The fact that it would be seen and be visible from Lot 6 (including the dwelling on Lot 6) was not, of itself, objectionable. However, the degree of impact on Lot 6 was too significant to warrant approval.
The Proposed Development would be set back only 9 metres from the southern boundary and would, when viewed from Lot 6, appear as a 64 metre long shed with a wall height of 6.6 metres and an overall height of 10 metres. The Proposed Development, by reason of its size, height and location, would be overbearing in terms of its impact on Lot 6.
The Tribunal found that the Proposed Development would adversely impact the visual amenity of Lot 6 and also found that the Proposed Development would be incompatible with its setting, particularly its relationship with existing development on Lot 6, to such a degree that approval should not be granted in the exercise of planning discretion.
Category: B
Representation:
Counsel:
| Applicant | : | Mr R Haeren (acting as agent) |
| Respondent | : | Ms H Coles-Bayes (acting as agent) |
Solicitors:
| Applicant | : | Urbis |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Adam and City of Fremantle [2008] WASAT 226
ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63
APP Corporation Pty Ltd and City of Perth [2008] WASAT 291
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
Dermer v The Shire of Busselton [2002] WASC 194
East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18
Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159
Ex parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282
Focus Video Pty Ltd v City of Enfield (1985) 55 LGRA 214
Housing Authority of Western Australia and Western Australian Planning Commission [2010] WASAT 66
McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187
Rowcliffe Pty Ltd v Stonnington City Council [2004] VCAT 1370
Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 45
Urban Resources Pty Ltd and City of Swan [2016] WASAT 81
Vodafone Hutchinson Australia Pty Ltd and City of Cockburn [2018] WASAT 4
Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant (Mr John Cranston) proposes to both construct and use a 'horse arena' (including an associated 'grandstand' or 'viewing area') at Lot 5 (No. 2738) South Western Highway, Serpentine (Lot 5).
In these reasons, I refer to the proposed horse arena, the grandstand and the associated use of these facilities as the Proposed Development.
Lot 5 is zoned Rural in both the Metropolitan Region Scheme (MRS) and the Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 (TPS 2) and has an area of 21.2 hectares.
The parties agree that there are essentially two issues. The first is whether the Proposed Development is consistent with the rural character and amenity of the locality. The second is the impact of the Proposed Development on the amenity of the lot that adjoins Lot 5 to the south (Lot 6 No. 2748, South Western Highway) (Lot 6).
The Shire of Serpentine-Jarrahdale (Shire or respondent) refused the Proposed Development on 2 October 2018. The refusal reasons were that the Proposed Development did not satisfy cl 67(m) and cl 67(n) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the deemed provisions). The Shire's position, put shortly, is that the Proposed Development is inconsistent with the amenity and character of the locality and would adversely affect the amenity of adjoining Lot 6.
For the reasons that follow, I agree with the applicant that the Proposed Development is consistent with the rural character and amenity of the general locality. However, I agree with the Shire that the degree of impact of the Proposed Development on Lot 6 is unacceptable. For this reason, I affirm the decision to refuse the Proposed Development.
The Proposed Development
The works aspect of the Proposed Development is a large rectangular metal-clad colorbond shed which is enclosed on all but its northern elevation.
In terms of its siting on Lot 5, the Proposed Development is to be located:
(a)9 metres from the southern boundary (aside from the section comprising the proposed 'grandstand' which will be located 3 metres closer to the southern boundary);
(b)108 metres from the eastern boundary (and 141 metres from the traffic lanes of the South Western Highway) (Highway);
(c)194 metres from the northern boundary; and
(d)766 metres from the western boundary.
The horse arena is 64 metres long by 24 metres wide (1,536m2) and will be orientated such that its longest side is parallel to the southern lot boundary. The wall height of the horse arena is 6.6 metres with an overall height of 10 metres. The grandstand or viewing area will form part of (and protrude out from) the southern elevation of the horse arena and will have a length of 16 metres by a width of 3 metres with a wall height of 4 metres). The overall floor area of the Proposed Development is 1,584m2.
The Proposed Development will be located in close proximity to existing stables and paddocks as well as a dwelling on Lot 5. There are existing paddocks west of the dwelling on Lot 5. There are some stands of vegetation at the western edge of Lot 5. Lot 5 is relatively flat. The Proposed Development will be located (approximately) 35 metres from the dwelling on adjoining Lot 6. Some of the habitable rooms of the dwelling on Lot 6 face the Proposed Development. I will discuss this issue further below.
The application for development approval outlined that the Proposed Development is for the training of horses for dressage. Ms Karen Wright, a town planner who gave evidence on behalf of the applicant, described the activities associated with the Proposed Development in the following terms:
(a)only one horse will be within the horse arena at a time;
(b)the facilities will not be used for human habitation and will only be used for the purposes of the applicant, not any commercial purpose;
(c)the horses using the arena will have already been agisted;
(d)the only visitors to Lot 5 will be family and friends; and
(e)no other facilities such as lighting, car parking or other amenities are proposed.
Classification of the Proposed Development
For the purposes of assessment, the respondent considers that the Proposed Development is classified as 'Equestrian Activity' which is defined in Appendix 1 of TPS 2, to mean:
[A]ny land or buildings used for the showing, competition or training of horses and includes a riding school.
Equestrian Activity is an 'AA' use in the Rural zone. Pursuant to cl 3.3.2 of TPS 2 an 'AA' use may be approved in the exercise of discretion.
In the applicant's statement of issues, facts and contentions it agreed, at paragraph 2.5, that the appropriate classification of the Proposed Development is Equestrian Activity. However, in her statement of evidence Ms Wright suggested that the Proposed Development could also be classified as a 'Rural Use' for the purposes of planning assessment.
The land use Rural Use is defined in TPS 2 to mean:
[t]he use of land for any of the purposes set out hereunder and shall include such buildings normally associated therewith:
(a)the growing of vegetables, fruit, cereals, or food crops except for domestic purposes;
(b)the rearing or agistment of goats, sheep, cattle, or beasts of burden;
(c)the stabling, agistment or training of horses, or other ungulates;
(d)the growing of trees, plants, shrubs, or flowers for replanting in domestic, commercial or industrial gardens;
(e)the sale of produce grown solely on the lot.
(Tribunal emphasis)
A Rural Use is a 'P' use in the Rural zone. A 'P' use means that the use is permitted provided it complies with the relevant standards and any requirements laid down in the Scheme.
Even where a use is 'permitted', the physical works associated with that use still require approval and may be refused in the exercise of discretion: Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 at [35] (Puma Energy). However, the fact that the use in question is permitted should be afforded weight in the exercise of discretion: Puma Energy at [35].
In ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT63 (ALH) the Tribunal referred to characterisation of a land use in the context of competing land use classifications as being, at times, akin to trying to resolve a 'Gordian knot': ALH at [57] and [70].
However, in ALH the Tribunal noted that such 'Gordian knot[s]' are resolved by clauses in Western Australian local planning schemes which require a specific land use to be preferred over the more general and that once a land use is defined, it is deemed to be excluded from other more general classifications: ALH at [57].
Clause 3.2.4 of TPS 2 is such a provision. It provides that where 'a particular use is mentioned it is deemed to be excluded from any other use class which by its more general terms might otherwise include such particular use'.
The effect of a clause such as cl 3.2.4 is that '[put simply], where a land use falls within two definitions, the more specific definition is to prevail': ALH at [58].
The Proposed Development, which involves the training of horses in a purpose-built facility, falls within the terms of both the Rural Use and Equestrian Activity as those land uses are defined in TPS 2.
The Proposed Development is not intended for the showing and competition of horses nor the operation of a riding school. However, the training of horses as a standalone activity - falls within the definition of Equestrian Activity. This is due to the use of the disjunctive 'or' in the definition.
Likewise, the training of horses can also be a Rural Use as it involves the training of horses (but does not involve stabling or agistment).
Whilst nothing ultimately turns on the classification issue (because the physical works associated with a permitted use still require planning approval), I consider that the Proposed Development is properly classified as an Equestrian Activity and is therefore an 'AA' use. I hold this view for two overlapping reasons both of which relate to the fact that Equestrian Activity is the more-specific land use that addresses the works and activities outlined in the Proposed Development.
Firstly, Rural Use is general land use that covers a broad range of rural activities. Even where the definition of Rural Use refers to horses it also refers to other ungulates. The more specific definition is Equestrian Activity as it is focused only on horses.
Secondly, the relevant definition of Rural Use refers to the stabling, agistment and training of horses. The stabling, agistment and training of horses are all activities that relate to the general keeping of horses on a property. The definition of Equestrian Activities, on the other hand, is focused on dressage activities in that it refers to the 'showing, competition or training of horses'. In classifying land uses, the activities that comprise the particular use are key: ALH at [64]. Because the activities outlined in the Proposed Development relate to the training of horses for dressage, the land use that has the most direct application is Equestrian Activity.
The Proposed Development is properly classified as 'Equestrian Activity' and by reason of cl 3.2.4 that is the use classification that applies.
Applicable planning framework
Local and regional planning schemes
TPS 2 has force and effect as if enacted by the Planning and Development Act 2005 (WA) (PD Act): s 68. TPS 2 is a central element of the applicable planning framework. Likewise the MRS has force and effect as if enacted by the PD Act (s 33(1)(b)) and also forms part of that framework. However, the MRS does not contain detailed local land use or site requirements and is more regional in scale and focus: see for example Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 at [89] and [101]; Housing Authority of Western Australia and Western Australian Planning Commission [2010] WASAT 66 at [30].
The objectives of TPS 2 include inter alia: 'to zone land for the purposes described in the Scheme so as to promote the orderly development of the land by making suitable provisions for land use': cl 1.6(b).
As stated, Lot 5 is zoned Rural in both the MRS and TPS 2. The objectives of the Rural zone are set out in cl 5.10.1 of TPS 2 which states:
The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
TPS 2 contains no minimum setbacks for development in the Rural zone. Tables II IV of TPS 2 includes detailed site requirements for a range of land uses including minimum front, side and rear setbacks in a number of zones. There is no table outlining detailed site requirements and minimum setbacks for the Rural zone.
Clause 67 of the deemed provisions sets out a range of matters that inform the exercise of planning discretion. The Shire refused the Proposed Development on the basis that it did not satisfy cl 67(m) and cl 67(n) of the deemed provisions. Those provisions read as follows:
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
The term 'amenity' is defined in cl 1 of the deemed provisions to mean:
[A]ll those factors which combine to form the character of an area and include the present and likely future amenity.
Local planning framework
The respondent has prepared Local Planning Policy 2.3: Development Standards for Development Applications (LPP 2.3) which sets out that landscaping plans are required to be submitted for a range of planning applications including, relevantly, at item 2(g) '[b]ulky developments in the rural zone including sea containers and over size outbuildings and buildings, where there is no existing vegetation screening the development'. LPP 2.3 is a relevant consideration pursuant to cl 67(g) of the deemed provisions.
In December 2017 the respondent prepared its Rural Strategy Review (the Strategy Review). The Strategy Review has been ratified by the Western Australian Planning Commission (WAPC). Both parties referred to the Strategy Review in presenting their cases. A rural strategy is not expressly identified in cl 67 of the deemed provisions as a relevant consideration to which 'due regard' must be given.
However, cl 67(zb) of the deemed provisions authorises the Shire (and now the Tribunal) to have regard to 'any other planning consideration the local government [and now the Tribunal] considers appropriate'. Furthermore, pursuant to s 241(1) of the PD Act I am required to have 'due regard' to 'relevant planning considerations'.
In my view, a planning document that has been prepared by the Shire to plan and manage rural land resources within the District and which has been ratified by the WAPC is relevant to a development application on rural land in the Shire.
Lot 5 together with surrounding land is included within the Agricultural Protection Policy Area in the Strategy Review: cl 4.6 read with Figure 4.1. The objectives of that policy area include:
•to retain and maintain the productive capability of land for agricultural enterprises in proximity to Perth and its markets;
•to ensure that productive agricultural enterprise remains the primary land use and to maintain the integrity of agricultural infrastructure; and
•to support and protect agricultural and horticultural industries.
The Subdivision and Development Guidelines for the Agricultural Protection Policy do not meaningfully inform the exercise of discretion in this instance. The controls are largely directed quite properly at managing subdivision within the policy area, not development control. To the extent that they are directed at development, the Strategy Review provides that 'development should accord to the prevailing requirements of the Shire's Local Planning Scheme as it pertains to the General Rural zone': Strategy Review page 14.
On the basis that Equestrian Activity is a discretionary use in the Rural zone, the Rural Strategy does not provide much in the way of assistance in evaluating the Proposed Development. As was noted in the evidence of Ms Wright, the Strategy Review has not resulted in any policy or other instrument to guide the siting and design of buildings in the policy area. The Strategy Review does confirm, however, that the planned future of the locality is that it shall remain available for productive agricultural pursuits (as well as possible landscape protection): Strategy Review page 54.
State planning framework
Although not referred to by the expert planners, I note that State Planning Policy 2.5 Rural Planning (SPP 2.5) applies to the Proposed Development because it involves development on rural land: cl 3.3(c) of SPP 2.5.
In broad terms, SPP 2.5 seeks to protect productive rural land and to ensure that land use change is controlled and managed through the preparation of local planning strategies and planning schemes. Pursuant to s 241(1)(a) of the PD Act I am required to give 'due regard' to any State planning policy (SPP) that may affect the subject matter of the application.
However, while relevant, I do not regard SPP 2.5 as a central consideration in this matter because the Proposed Development is in furtherance of a rural use (being equestrian related activities) and does not involve the conversion of productive rural land to non-rural uses.
While I am required to give due regard to a relevant SPP, s 241(1)(a) of the PD Act does not require that any particular (or minimum) weight be attached to a SPP or any other 'relevant planning consideration'. A flexible weighing process, in the sense set out by Mason J in Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 at [41], is the applicable (and correct) approach to s 241(1) of the PD Act: Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 at [137] (Martin J); Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 at [114] (Simmonds J).
The reviewable decision
The application for development approval was lodged with the Shire on 30 April 2018 and was advertised pursuant to cl 64 of the deemed provisions. The advertising resulted in two submissions both in respect of the impact of the Proposed Development on Lot 6. The submissions were lodged by the registered proprietor of Lot 6 (Divor Pty Ltd) and the current occupier of the dwelling on Lot 6 (Leigh Broad). Both submissions raised concerns with respect to the Proposed Development in terms of its proximity to the dwelling on Lot 6 as well as other matters (such as noise and stormwater management).
The submission from Divor Pty Ltd highlights concerns about the potential for significant numbers of people to visit the Proposed Development and an absence of information on issues such as traffic management.
These submissions are relevant considerations pursuant to cl 67(y) of the deemed provisions.
Following the advertising of the Proposed Development, in an effort to address the concerns raised in the two submissions, the applicant prepared a landscaping plan for the southern boundary. The plan proposes planting a line of Agonis flexuosa (commonly referred to as Western Australian Peppermints) at 8 metre intervals (with intervening shrubs) on the southern elevation in order to screen the Proposed Development. Agonis flexuosa reach maturity at 6 to 7 years and have a height of approximately 7 metres with a canopy width of approximately 5 metres.
On 2 October 2018 the Shire refused the Proposed Development for the following reasons:
1.The structure does not satisfy clause 67(m) of the Deemed Provisions as it would pose an unacceptable impact to the amenity of the area by means of the proposed location, orientation, bulk, size and scale of the development, which is incompatible with development in the locality and the setting in which the development is proposed.
2.The structure does not satisfy clause 67(n) of the Deemed Provision as it is inconsistent with the established rural character of the locality, which features large lots with wide-open spaces and considerately designed and located development.
The applicant lodged the application for review with the Tribunal on 16 October 2018.
The issues
The parties consider, and I agree, that there are two issues that arise in the context of the Proposed Development:
1)Whether the Proposed Development by reason of its height, size and location be consistent with the rural character and amenity of the locality.
2)Whether the Proposed Development by reason of its height, size and location unduly impacts on the amenity of the southern adjoining lot (Lot 6).
Site context
The final hearing included a site view of both Lot 5 and the surrounding locality to the north and south (along the relevant section of the Highway). The location of the Proposed Development was inspected as well as the existing development on Lot 5. Lot 6 (including the dwelling on Lot 6) was also viewed from Lot 5.
The planning experts
I had the benefit of evidence from two town planners. Mr Hayden Ruse gave evidence on behalf of the respondent. Mr Ruse is a Statutory Planning Officer at the Shire. Mr Ruse has a Bachelor of Arts (Urban and Regional Planning) (Hons) which he completed in 2015. Mr Ruse was the reporting officer on the Proposed Development.
As stated, Ms Wright gave evidence on behalf of the applicant. Ms Wright is a director at Urbis. Ms Wright possesses a Bachelor of Arts (Urban and Regional Planning) which she completed in 1992.
Both planners are qualified experts and each gave thoughtful and articulate evidence. I was assisted by both experts and the advocates' questioning of them.
I also had the benefit of statements of issues, facts and contentions filed by both parties as well as the respondent's Bundle prepared pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The planning evidence
Mr Ruse's evidence
The evidence of Mr Ruse highlights the core of the Shire's concerns. Mr Ruse's evidence was that the proposed setback to the southern boundary of Lot 5 was not sufficient to adequately mitigate the impacts of the builtform. Mr Ruse was concerned about the size, bulk and scale and also the orientation of the Proposed Development. He was concerned about the 'long face' of the Proposed Development and how that interfaces with the dwelling on Lot 6. He outlined (and included photographs showing) that the living area of the dwelling on Lot 6 looks out onto the Proposed Development site. He stated 'the habitable spaces of the house view straight into that paddock and a shed of such size in that location I consider would have a significant visual impact' (ts 11.57 am, 5 March 2019).
The sheer scale of the Proposed Development combined with the proposed setback to the southern boundary was his primary concern. By analogy he observed that by reason of cl 5.4.2 of TPS 2 a single house in the Rural zone must be set back in accordance with the requirements of the R2 coding. The deemedtocomply provisions of the R2 coding in State Planning Policy 3.1 Residential Design Codes (RCodes) requires a setback of 10 metres for single houses. The inference that Mr Ruse's evidence invites is that given the size differential between a residential dwelling and the Proposed Development, the impact and effect of the proposed setback becomes more manifest.
Mr Ruse considers that the Proposed Development by reason of its size (and associated bulk and scale) - is not one which would reasonably be expected in this area. His evidence (which was not questioned or contradicted and which I accept) is that the Proposed Development would be larger than any other shed or other outbuilding in the locality. Mr Ruse considers that the proposed landscaping will not have a significant ameliorating effect, particularly in the shortterm as the plantings grow to maturity. In the longterm, he had concerns that, even at maturity, the single row of screening may not be effective.
It was put to Mr Ruse in crossexamination that the location of the Proposed Development needed to make 'operational sense'. That is, the location of the horse arena and grandstand has to make sense in the context of the operations on Lot 5. Mr Ruse accepted that the operational needs were relevant and he understood the basis for the structure being enclosed was to provide protection from the wind off the Darling Scarp as well as the rain.
However, Mr Ruse considered that those two factors did not mean that the Proposed Development had to be located as proposed. He understood the logic of placing the structures near the existing horse stables but considered that the Proposed Development could have been setback further and reorientated. However, he was not prepared to suggest an alternative setback because it would be too uncertain. He considered that the Proposed Development '[needed] to change more fundamentally to be acceptable' (ts 12.06 pm, 5 March 2019).
In cross-examination it was put to Mr Ruse that what is in issue is the impact on a view from the dwelling on Lot 6 and that, as a matter of law, there is no right to a view. Mr Ray Haeren, the agent for the applicant, put to Mr Ruse that the residence on Lot 6 overlooks what is private land. That point was accepted by My Ruse but he did not consider that it would change his assessment in a fundamental sense (ts 12.11 pm, 5 March 2019).
Ms Wright's evidence
Ms Wright considers that the absence of any planning scheme or policy controls on setbacks in the Rural zone is 'not normal' (ts 12.33 pm, 5 March 2019). Ms Wright noted that it is a feature of rural uses to see improvements that relate to those uses (she specifically noted seeing houses, stables, sheds and water tanks on the site view) (ts 12.36 pm, 5 March 2019).
Ms Wright identified that neither the planning scheme nor any policy instrument provided guidance on what an appropriate setback should be in the Rural zone. Ms Wright observed that the closest that the planning framework comes to providing guidance is that LPP 2.3 discusses the need to preserve high value landscapes (ts 12.37 pm, 5 March 2019). LPP 2.3 refers to landscaping plans being required in the Rural zone in relation to bulky developments including sea containers and over-sized outbuildings. Ms Wright reasoned that this provision indicates that oversized outbuildings are contemplated within the Rural zone of the Shire.
Ms Wright also considered that by reason of LPP 2.3, the use of landscaping was also an appropriate measure to ameliorate or manage the visual impacts of development. Her view was that the intermittent observation of the Proposed Development through the proposed landscaping screen would be an appropriate outcome (ts 12.42 pm, 5 March 2019).
Ms Wright considered that a 9 metre setback to the southern boundary was appropriate to allow both the planting of a row of trees and also to maintain a firebreak (ts 12.43 pm, 5 March 2019). Ms Wright also considered that if the Proposed Development was setback a further 3 metres (to 12 metres) an existing row of trees could also be extended which would provide further screening (ts 12.43 pm, 5 March 2019).
In terms of the dwelling on Lot 6 (and the impacts of the Proposed Development on that dwelling) Ms Wright outlined that Lot 6 has a frontage to the Highway 274 metres but is sited 26 metres from the lot boundary. However, she acknowledged that visual amenity impacts needed to be addressed and, in her opinion, have been through the proposed landscaping (ts 12.44 pm, 5 March 2019). Ms Wright also noted, and which I accept, that there are numerous other outbuildings in the locality where there is no screening in place (ts 12.44 pm, 5 March 2019). She expressly referred to a grain shed viewable from Arnold Road that was visible 'from hundreds of metres away' (ts 12.45 pm, 5 March 2019).
Ms Wright referred to amenity impacts of development operating at two levels. The first is the impact of the public realm and the second is the impact on the adjoining dwelling on Lot 6. Ms Wright's view is that the primary consideration is to manage the amenity impacts on the public realm but that the impact on the adjoining house is still a consideration (ts 12.48 pm, 5 March 2019).
In cross-examination Ms Wright agreed that the amenity impacts of the Proposed Development on adjoining properties was a relevant consideration. She considered that if the Council wanted to set prescribed minimum standards for setbacks (if it wanted to more effectively control such development) it could have done so in either the planning scheme or a policy. Ms Wright was of the view that the amenity impacts on Lot 6 had been considered 'particularly in relation to the location of the setback [which provided] sufficient space … to ensure that [landscaping] could be developed on the edge of the development' (ts 12.52 pm, 5 March 2019).
Taking account of the width of the frontage of Lot 6 (274 metres), Ms Wright considered that owners of Lot 6 could have alternatively sited their dwelling elsewhere on the lot in order to protect their own visual amenity. However, she noted that the dwelling is located only 26 metres from Lot 6's northern boundary (ts 12.57 pm, 5 March 2019). Ms Wright considered that even if the setback of the Proposed Development was increased, it would still be visible from some habitable rooms within the dwelling on Lot 6. Her view was that the issue of the amenity impacts arises due to the orientation of the dwelling on Lot 6. She considered that 'any improvement [on this portion of Lot 5] is going to be visible from that house' (ts 12.59 pm, 5 March 2019).
Ms Wright disagreed with a question that the greater the scale of the Proposed Development the greater the impact. She considered that a residential dwelling in the same location would have the same impact (ts 1.01 pm, 5 March 2019).
In terms of the ameliorating effects of the proposed landscaping, Ms Wright agreed that the Proposed Development would be visible but she considered that the landscaping would assist in ameliorating the visual amenity. When questioned on the fact that the landscaping plan shows the trees at maturity (after a period of seven years) Ms Wright noted that these matters can be conditioned and that the applicant could look at faster growing species (ts 1.06 pm, 5 March 2019).
Ms Heather Coles-Bayes, the agent for the respondent, questioned Ms Wright as to whether in the context of a 21 hectare property, the Proposed Development could be located elsewhere on Lot 5. Ms Wright stated that she would have to defer to the landowner but had been advised that there are minimal opportunities for other locations due to 'operational needs'. She also stated there are services that run through the property as well as water tanks and other considerations that suggested this was the optimal site (ts 1.07 pm, 5 March 2019). In the absence of having to move locations, the current proposed site was considered appropriate (ts 1.07 pm, 5 March 2019).
Evaluating amenity: general principles
The impact of the Proposed Development on the amenity of the locality is a central issue in these proceedings. It has been observed that 'except for "development", "amenity" is the hardest worked word in planning language': Ex parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282 at [306] citing a progress report from the Minister of Local Government and Planning in the United Kingdom entitled 'Town and Country Planning 1943-1951' (1951) Journal of Planning Law, p 377.
The case authorities and relevant principles on evaluating amenity in Western Australia are well-known and settled. For many years the leading authority was Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) where the former Town Planning Appeal Tribunal (at 304) set out a three-step test in terms of evaluating amenity. The relevant steps are:
1)establish the existing amenity in an objective sense;
2)evaluate the manner in which the proposed use will affect the existing amenity; and
3)assess the degree of impact on the locality.
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] (Sunbay) Barker P (as he then was) generally endorsed the approach to amenity set out in Tempora (save for one exception as to how amenity is evaluated which is not presently relevant) and confirmed that an evaluation of amenity should take account of future amenity: at [22]. The need to consider future amenity is expressly recognised in the definition of amenity in cl 1 of the deemed provisions.
Tempora and Sunbay remain the leading authorities on the question of amenity: see for example The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018]WASAT 45 at [76]; Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159 (Evangel) at [54]; Urban Resources Pty Ltd and City of Swan [2016]WASAT 81 at [47] [52].
Tribunal's analysis and disposition
The purpose of the Tribunal's review is to make the correct and preferable decision as at the time of the decision upon the review: s 27(2) of the SAT Act. The hearing before the Tribunal is de novo: s 27(1) of the SAT Act.
This matter raises two issues that require resolution. I have set these out in full at [52]. Put shortly, the issues are the impact of the Proposed Development on the character and amenity of the locality generally and the impact on Lot 6 specifically.
ISSUE 1: the impact of the Proposed Development on the locality
The locality
In order to evaluate the Proposed Development in the context of the locality, it is first necessary for the relevant 'locality' to be determined. The term 'locality' is not defined in TPS 2 (including the deemed provisions). Locality is a flexible concept that is to be determined having regard to the town planning context in which a proposed subdivision or development is located.
In Focus Video Pty Ltd v City of Enfield (1985) 55 LGRA 214 Jacobs JA noted (at 220) that:
the extent of the relevant 'locality' for planning purposes varies from case to case, but care must be always … taken not [to] unduly … restrict the locality, for the tighter the locality is defined, the greater [the] impact of the impugned subject matter … and the greater is the risk of distorting the relevant planning criteria.
In Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187 the Tribunal observed (at [42]) that:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
See also Evangel at [52]; Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [89].
Neither Mr Ruse nor Ms Wright expressly defined the 'locality' in their written or oral evidence. However, the experts were agreed in terms of the conduct of the site view as to which parts of the district should be viewed for the purposes of assessing the impact of the Proposed Development. I find that the area inspected on the site view is the relevant 'locality' for the purposes of assessing the Proposed Development.
Based on the site view, the relevant locality includes Arnold Road and the land generally south to (approximately) the driveway of Beluga Park Equine Stud. Arnold Road is approximately 1.95 kilometres north of Lot 5 and runs between the Highway and Lefroy Street (Lefroy Street is part of the Serpentine town site).
The driveway to the Beluga Park Equine Stud (which is located on the opposite side of the Highway) is approximately 500 metres south of Lot 5. The locality includes the land which fronts the Highway on either side. The locality extends westwards to the (approximate) western boundary of Lot 5. Given the size of the lots in question and the proposed placement of the horse arena and grandstand on the eastern portion of Lot 5, I do not consider that the land west of this point will be affected, in any relevant sense, by the Proposed Development. Lot 6 is part of the relevant locality.
The existing amenity of the locality
Both experts provided an assessment of amenity. In his witness statement, Mr Ruse described the amenity of the locality as being characterised as featuring 'large lots, open space, paddocks and large stands of remnant vegetation. The buildings in the locality are relatively limited in scale and well spread out on large lots in a manner that does not detract from the open and rural feel of the locality'. Mr Ruse's evidence included photographs taken from within the dwelling on Lot 6.
In her written evidence Ms Wright noted a varied landscape 'from properties with numerous tree lined driveways and paddocks, tree lined property boundaries with clusters of (re)vegetation, through to properties being predominantly cleared of all vegetation'.
As stated, I had the benefit of a site view in addition to the expert witness accounts. Having regard to all of the evidence, I find that the locality is a visually appealing and pleasant productive rural environment which is characterised by large tracts of rural pasture with clusters of builtform development (in the form of dwellings and/or sheds, stables, water tanks or other outbuildings) dispersed throughout. Equestrian activities are common as are other rural uses such as the rearing of stock (on Lot 6 for example). The Darling Escarpment presents as an attractive backdrop to the east.
Standing on the relevant portion of Lot 5 it was apparent that the Proposed Development will be highly visible from the north-eastern portion of Lot 6 (although I was not taken onto Lot 6). I will return to this topic when I address Issue 2.
The Proposed Development is screened (but not completely) by vegetation as one travels south on the Highway. Travelling north on the Highway, whilst there is some vegetation screening, the Proposed Development can be viewed through a break in the vegetation as one approaches Lot 5. In an overall sense, the Proposed Development will be intermittently visible from the Highway.
There is evidence of land use change in the locality to the northwest of Lot 5 as rural living development occurs around the Serpentine town site (as viewed from Arnold Road).
In terms of future amenity, the Shire's planning indicates that the locality will remain agricultural land into the longer term (aside from the land that is being developed for rural living purposes close to the Serpentine town site).
The impact of the Proposed Development on the locality
Tempora suggests that the amenity impacts of a proposed development need to be isolated and evaluated: at [304]. The respondent presented no evidence on noise, dust or any other issue in terms of amenity. The only aspect of amenity that is put forward is the visual impact of the Proposed Development and its compatibility with its context.
The Proposed Development is very significant in terms of its size and height. The combination of height and size, in turn, raises further considerations of bulk and scale. Even in this rural context, a structure with a floor area of 1,584m2 is a very large structure. The Proposed Development has an overall height of 10 metres (with a wall height of 6.6 metres) and will be 64 metres long. As stated, I accept Mr Ruse's evidence that this is the largest outbuilding that has been proposed in this locality.
The Proposed Development will be set back 108 metres from the front (eastern) boundary (141 metres from the road surface of the Highway) and will present as a structure that is 24 metres wide (although the 64 metre length of the structure will be apparent as one travels past Lot 5). I have already set out that the Proposed Development is screened, to some extent, by vegetation along the Highway. However, the Proposed Development will still be visible from the Highway and is in the locality generally.
The degree of impact of the Proposed Development on the locality
I find that in the context of what is, and what is planned to remain, a productive agricultural area the presence of large structures is not unreasonable. Whilst the Proposed Development may be larger than any current structure that fact, of itself, does not make it unreasonable. I find that large structures associated with rural uses are not inconsistent with the character and amenity of the locality. Moreover, such structures would not be inconsistent with the planned future amenity of the locality.
The Proposed Development will be set back over 140 metres from the traffic lanes of the Highway. The landscape in this locality is characterised by clusters of builtform surrounded by significant stands of open pasture. Whilst the Proposed Development will be visible from the Highway and within the locality generally, mere visibility of a new structure in the landscape is, of itself, not a proper basis for refusal: Rowcliffe Pty Ltd v Stonnington City Council [2004] VCAT 1370 at [54]; see also Vodafone Hutchinson Australia Pty Ltd and City of Cockburn [2018] WASAT 4 at [42].
I find that the Proposed Development would not adversely impact the amenity of the general locality. Large outbuildings in the landscape are a necessary incident of productive agricultural and rural land uses. While the Proposed Development is a very large structure, its size is reasonable as it is sited in an open paddock, is set back from the Highway and screened by intermittent vegetation. The use of the proposed materials was not raised as an issue by the Shire. The Proposed Development will appear as a very large shed in a rural setting. While I accept it would be the largest structure in the locality, the degree of impact is not so great such that the Proposed Development warrants refusal for this reason.
On this issue, I agree with Ms Wright that the Proposed Development would not be injurious to the existing character and amenity of the general locality. I therefore find that the Proposed Development is consistent with the character and amenity of the locality.
ISSUE 2: the impact of the Proposed Development on Lot 6
The existing amenity of Lot 6
The amenity of Lot 6 reflects the amenity of the general locality of which it forms part. In particular, Lot 6:
(a)is a working rural property currently used to rear cattle; and
(b)contains a dwelling, sheds and other outbuildings which are clustered in the northeast portion of the lot.
Furthermore, the dwelling on Lot 6:
(a)is located 26 metres from the northern boundary; and
(b)orientates at least its internal and external living areas such that they look north/north-east onto the front paddock of Lot 5 which is the location of the Proposed Development. Those views are of trees together with open areas of rural paddock.
The fact that the habitable rooms, and in particular the outdoor areas, of the dwelling on Lot 6 face north is hardly surprising as this design takes advantage of the winter sun. Indeed, the RCodes include design elements (such as Element 6 Site Planning and Design and Element 7 Building Design) which encourage the orientation of buildings and outdoor areas to take advantage of the northern aspect.
Overall, the existing amenity on Lot 6 is that of a working rural property which contains a dwelling and associated outbuildings.
The impact of the Proposed Development on Lot 6
The Proposed Development is orientated such that its longest aspect (64 metres in length) faces Lot 6 and, unlike on the northern elevation, it will present as a solid colour-bond shed. There is no articulation proposed nor any variances in materiality or finish. The Proposed Development is set back 9 metres from its southern boundary. The overall height of the Proposed Development is 10 metres which broadly translates to a three storey dwelling (in a residential context).
It is plain that the Proposed Development will be visually prominent from Lot 6 including from within and immediately adjacent to the dwelling on Lot 6.
The degree of the impact of the Proposed Development on Lot 6
Other than for dwellings, TPS 2 is silent on setbacks in the Rural zone. As was explained by Mr Ruse, TPS 2 requires setbacks for dwellings in the Rural zone to meet the requirements of R2 of the RCodes: cl 5.4.2. The R2 coding requires a setback of 10 metres.
However, the lack of a prescribed (general) minimum setback in the Rural zone does not mean and should not be interpreted to mean that setbacks are not an issue in assessing development. All that the absence of prescribed setback means is that, in each instance, any proposed setback must be evaluated on its merits.
Ms Wright's evidence is that the 9 metre setback will allow a firebreak to be maintained as well as to allow the proposed landscaping.
The Proposed Development will impact the views currently enjoyed from Lot 6 over Lot 5. However, in broad terms, I accept the point made by Mr Haeren in his crossexamination of Mr Ruse that this case should not be determined on the basis that it disrupts a view of an open paddock that is currently enjoyed from Lot 6.
As the Tribunal has noted in APP Corporation Pty Ltd and City of Perth [2008]WASAT291 citing the decision Senior Commissioner Roseth of the New South Wales Land and Environment Court in Tenacity Consulting Pty Ltd v Warringah Council [2004]NSWLEC140; (2004)134LGERA23 at[27] (Tenacity Consulting) it is often unrealistic to expect side views [that is views over adjoining private properties] to be maintained: at [54].
Tenacity Consulting set out a four-step test to evaluate the impact of development on existing views: at [26] - [29]. The first step involves an evaluation of the view affected (whether the view affected view is highly valued or even iconic). The Tribunal adopted this four-step analysis of views in APP in order to assess visual impact: at [55]; as well as in McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9 at [48] [52].
In Adam and City of Fremantle [2008] WASAT 226 the Tribunal noted that a view that was to be lost due to the construction of a balcony was 'obtained through what is effectively another dwelling's private open space': at [49].
In Dermer v The Shire of Busselton [2002] WASC 194 his Honour Roberts-Smith J observed at [22] that:
… a person cannot protect views if they choose to buy property in a location which can lawfully be built out at some time in the future. There is no absolute right to a view.
However, while it is the case that there is no absolute right to a view, that does not mean that the impact on views cannot be a relevant planning consideration. Design principle 5.1.6 (for single houses and grouped/multiple dwellings coded less than R40) and design principle 6.1.2 (for multiple dwellings coded R40 or greater or within mixed use or activity centres) of the RCodes both relate to managing the impact of development on adjoining properties and each refers to the maintenance of 'access to views of significance' as a relevant consideration. Views can also be considered as an element of amenity.
While the impact on views may, at times, be a relevant planning consideration I note that the RCodes have no application to the Proposed Development. In any event, even if I was to take account of 'views of significance', I do not consider that the view enjoyed by Lot 6 is such a view. It is not a highly valued view over water or land, nor is it iconic (to adopt the criteria and language set out in Tenacity Consulting at [26]). Based on the evidence (in particular the photographs in Mr Ruse's evidence) I find that it is a pleasant but typical rural view enjoyed across an adjoining rural property.
It is also relevant this is a locality and is planned to remain a locality where residential dwellings are located on working rural properties. The types of development that relate to and are an incident of such rural uses must be expected to be visible in the landscape. This includes outbuildings and even substantial outbuildings.
It follows that there can be no expectation that the current views from the dwelling on Lot 6 over the eastern portion of Lot 5 will be protected or retained in the longer term. Lawful development may well proceed on the relevant portion of Lot 5 and the fact that it will have some impact on the views from Lot 6 should not, of itself, be regarded as a reason to refuse such development. The mere fact that the Proposed Development will be visible from Lot 6 is not an issue on which this case turns.
However, notwithstanding my finding that Lot 5 cannot be insulated from development in order to maintain views from Lot 6, I find that the Proposed Development will be highly visible from Lot 6 to the point where it is unacceptable. This is so even taking into account the mitigating effect of the landscaping proposed by the applicant. In my opinion, the Proposed Development is overbearing in terms of its impact on the visual amenity of Lot 6. It will have an overall height of 10 metres (equivalent to almost a three storey dwelling) and will run for a length of 64 metres in very close proximity to the boundary with Lot 6.
In my opinion, the height, size and location of the Proposed Development will have an intrusive impact on the amenity of Lot 6. I find that the Proposed Development has been sited with insufficient sensitivity.
The unacceptable impacts of the Proposed Development are a consequence of its location relative to Lot 6. It has been sited so close to the boundary and orientated in such a manner (so to have its longest side facing Lot 6) that its impact is not acceptable in planning terms. The siting of structure the size and height of the Proposed Development only 9 metres from the boundary raises consequential amenity impacts such as bulk and scale (in relation to Lot 6). The Proposed Development has been located such that it would be incompatible with its setting and with the development on adjoining Lot 6.
I therefore find that while the Proposed Development is acceptable from the viewpoint of the general locality, it is unacceptable in terms of its impact on Lot 6.
A development can be refused based on the amenity impacts on one property. In Sunbay Barker J found (at [28]) that it is open:
… in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property[.]
It may be accepted that any development on this portion of Lot 5 will have an impact on Lot 6. However, that does not remove the need to ensure that development is carefully sited.
I find that the Proposed Development will adversely impact the visual amenity of Lot 6. I also find that the Proposed Development is incompatible with its setting, particularly its relationship with existing development on Lot 6, to such a degree that approval should not be granted in the exercise of planning discretion.
Operational reasons
The applicant's case seems to be premised, in part, on an argument that the location of the Proposed Development on this portion of Lot 5 is necessary for 'operational reasons'. Those operational reasons seem to arise from the location of the existing stables, services, water tanks and paddocks on Lot 5.
In response to that argument I make three observations. The first is that the applicants did not call any specific evidence to speak to the issue of operational needs. The second is that when questioned on this issue Ms Wright said she had to defer to what the landowner had told her about operational needs (ts 1.07 pm, 5 March 2019). To the extent that Ms Wright gave evidence about the operational needs of Lot 5 that were explained to her by her client, that evidence is hearsay. Because the object of Ms Wright's evidence is to assert the truth of what was said, it is likely to be impermissible hearsay in the sense explained by the Court of Appeal in East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18 at [145] (Murphy and Beech JJA). While the rules of evidence do not apply in the Tribunal (s 32(2) of the SAT Act) and the evidence was taken, I am not prepared to afford that aspect of Ms Wright's evidence significant weight. The third is that, in any event, even if I accepted Ms Wright's evidence on operational needs, it was vague and did not actually establish or justify why the Proposed Development had to be located as proposed.
The perceived impacts of development
In his closing submissions, Mr Haeren suggested, by reference to the case of Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38 (Woolworths) that the Tribunal needs to distinguish between what residents may perceive as being the impacts of development, and the reality of those impacts.
In Woolworths the proposal in question was a Dan Murphy's liquor outlet and local residents had expressed concern about the antisocial impacts that may arise from that use. On the evidence before it, the Tribunal had no factual basis to conclude that the use of the land for a liquor store would lead to antisocial behaviour and associated amenity impacts. The Tribunal, by reference to the decision of Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124 found that it had to draw a distinction between what residents might perceive the impacts of a use to be and the reality of those impacts: at [76].
The amenity issue in Woolworths was the potential for antisocial behaviour arising from the future use of the development to sell packaged liquor. That is a very different (and far more nebulous) issue from an assessment of the visual impact of the proposed builtform of a development which arises in this case. I do not consider that the principle that arises from Woolworths has any application in this matter.
Amenity impacts need to be weighed and balanced
Mr Haeren also made submissions on the need to balance and weigh the amenity impacts of the Proposed Development on Lot 6 as against the locality generally. He submitted that if the Proposed Development were relocated elsewhere on Lot 5 it may result in a greater amenity impact on the locality generally. He submitted that the impact of the Proposed Development on the 'public realm and the public benefit' should be the 'fundamental focus' (ts 2.21 pm, 5 March 2019).
I do not accept that submission. Whilst I accept that the impacts of development on the public realm are a relevant planning consideration, I do not agree that the amenity of Lot 6 must, in effect, be sacrificed or traded away in order to protect the general locality.
Whilst the term 'locality' is not defined in TPS 2, it is a term that plainly (and necessarily) encompasses land in both public and private ownership. Likewise, the definition of amenity in the deemed provisions is not restricted to only the amenity of land in the public realm. The impact of development on private land is also a relevant planning consideration. In this instance, the Proposed Development must be acceptable in terms of its impact on the general locality, as well as its impact on Lot 6 specifically, in order to warrant approval.
For this reason, I am unable to accept Ms Wright's evidence that the primary consideration is the impact of the Proposed Development on the public realm (ts 12.48 pm, 5 March 2019). Furthermore, I do not accept Ms Wright's evidence that a residential dwelling located in this portion of Lot 5 would have the same impact as the Proposed Development (ts 1.01pm, 5 March 2019). A residential dwelling in the same location would not have the same impact as a structure that is 1,584m2 in area and which has an overall height of 10 metres.
I find that overall Mr Ruse's planning analysis of the impacts of the Proposed Development on Lot 6 was more balanced and considered. I accept Mr Ruse's evidence that the impacts of the Proposed Development on Lot 6 are unacceptable.
For the avoidance of doubt, these reasons should not be construed as a finding that a structure the size of the Proposed Development cannot be supported on Lot 5 (especially given that it is over 21 hectares in size). In the context of a locality which involves land being put to productive rural uses, large outbuildings, even very large outbuildings, must be reasonably expected to appear in such a landscape.
However, such buildings need to be carefully and respectfully sited so as to ensure that the amenity of the general locality, as well as the amenity of adjoining properties, is not unduly injured. The Proposed Development in so far as it relates to Lot 6 - fails in this regard.
Conclusion
This case involves, in effect, an assessment of the Proposed Development in two overlapping and related planning contexts. Those contexts are the impact of development on a general locality as against the impact of one lot within that locality.
I find that, taking account how the Proposed Development will be viewed in terms of the general locality, there is no basis for it to be refused. The mere presence of a structure the size of the Proposed Development is not injurious to the amenity of what is a productive rural area (and for what is planned to remain a productive rural area in the longer term). In terms of its relationship with the Highway, the Proposed Development is, to some extent, screened by vegetation and is set back a considerable distance. It is also orientated such that its shortest aspect faces the Highway.
However, the impact of the Proposed Development on adjoining Lot 6 is not acceptable. The Proposed Development will have an overbearing impact on Lot 6 by reason of its height, size and location. While the proposed landscaping will go some way to ameliorate these impacts, the result is still an unacceptable planning outcome. The Proposed development will have a community impact on Lot 6 that is too significant. It is also the case that the Proposed Development is inconsistent with the existing development on Lot 6.
I therefore find that the correct and preferable decision is to affirm the Shire's decision to refuse the Proposed Development. The application for review is dismissed.
Order
1.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
11 APRIL 2019
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