Karafil and Shire Of Waroona
[2007] WASAT 190
•20 JULY 2007
KARAFIL and SHIRE OF WAROONA [2007] WASAT 190
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 190 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:78/2007 | 13 JUNE 2007 (FURTHER WRITTEN SUBMISSIONS RECEIVED 27 JUNE 2007, 12 JULY 2007, 13 JULY 2007 & 16 JULY 2007) | |
| Coram: | MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 20/07/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed and planning consent granted | ||
| B | |||
| PDF Version |
| Parties: | RASIM KARAFIL SHIRE OF WAROONA |
Catchwords: | Development Erection of relocated house on residential lot Planning application called for by local authority Whether planning approval is required Application of policy Acceptable type of relocated dwelling Character of the area |
Legislation: | Residential Design Codes of Western Australia (2002), cl 2.2 Shire of Waroona Town Planning Scheme No 7 (Municipal District), cl 1.7.3, cl 2.4, cl 2.4.1, cl 2.4.2(a), cl 2.4.3, cl 6.1.1, cl 6.1.2, cl 6.1.2(c), Table 1 |
Case References: | Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Nicholls and Western Australian Planning Commission [2005] WASAT 40 |
Orders | 1. The application for review is allowed.,2. Planning consent is granted under TPS 7 for the erection relocated dwelling at Lot 1 (No 25) Thatcher Street (Proposed Lot 2), Waroona as shown on the plans prepared by Giovanni Conte dated 10 February 2007. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KARAFIL and SHIRE OF WAROONA [2007] WASAT 190 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 13 JUNE 2007 (FURTHER WRITTEN SUBMISSIONS RECEIVED 27 JUNE 2007, 12 JULY 2007, 13 JULY 2007 & 16 JULY 2007) DELIVERED : 20 JULY 2007 FILE NO/S : DR 78 of 2007 BETWEEN : RASIM KARAFIL
- Applicant
AND
SHIRE OF WAROONA
Respondent
Catchwords:
Development - Erection of relocated house on residential lot - Planning application called for by local authority - Whether planning approval is required - Application of policy - Acceptable type of relocated dwelling - Character of the area
Legislation:
Residential Design Codes of Western Australia (2002), cl 2.2
(Page 2)
Shire of Waroona Town Planning Scheme No 7 (Municipal District), cl 1.7.3, cl 2.4, cl 2.4.1, cl 2.4.2(a), cl 2.4.3, cl 6.1.1, cl 6.1.2, cl 6.1.2(c), Table 1
Result:
Application for review allowed and planning consent granted
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ross Davidson (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Shire of Waroona
Case(s) referred to in decision(s):
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission [2005] WASAT 40
(Page 3)
Summary of Tribunal's decision
1 On 13 February 2007, the Shire of Waroona received an application for the relocation of a dwelling to Lot 1 (No 25) Thatcher Street, Waroona. The Shire of Waroona refused the application on the basis that the development did not comply with its recently amended Policy 9.0 – "Relocated Dwellings Policy" which precludes relocated dwellings within the boundaries of any gazetted townsite.
2 The Tribunal initially considered the preliminary matter of whether planning consent was required for the development. The Tribunal found that as the strata titles had not been issued at the time the application for planning consent was made to the Shire of Waroona the development comprised a "Grouped Dwelling" rather than a "Single House" and, as such, required planning consent under the Shire of Waroona Town Planning Scheme No 7 (Municipal District).
3 In regard to the merits of the case, the Tribunal found that the proposed dwelling complied with the general intent of the Shire of Waroona's Policy 9.0 – "Relocated Dwelling Policy" and that, as the development would not compromise the character of the locality, it would be appropriate to relax the provision of the policy precluding relocated dwellings within the boundaries of any gazetted townsite.
4 While the precedent argument is relevant, the Tribunal determined that it should not defeat, on its own, a proposal of merit.
5 The application for review was allowed and planning consent granted under the Shire of Waroona Town Planning Scheme No 7 (Municipal District).
Application
6 On 13 February 2007, the Shire of Waroona (Shire, Council or respondent) received an application for the relocation of a dwelling to Lot 1 (No 25) Thatcher Street, Waroona (subject land or Lot 1).
7 Lot 1 comprises a triangular area of land on the corner of Thatcher Street and Jackson Street. An existing dwelling immediately adjacent to the corner of Thatcher and Jackson Streets is to be retained and Lot 1 survey strata titled with one survey strata lot for the existing dwelling and three additional survey strata lots; one facing Thatcher Street
(Page 4)
- (proposed Lot 2) and two facing Jackson Street (proposed Lots 3 and 4). A copy of the proposed survey strata for Lot 1 is attached at Appendix 1.
8 The relocated dwelling the subject of this review will be located on proposed Lot 2. This lot comprises an area of 471 square metres and has a frontage of 23.70 metres to Thatcher Street. The relocated dwelling will be located centrally on the lot parallel to Thatcher Street and set back approximately 6 metres from the front boundary. Two photographs of the subject dwelling are attached at Appendix 2.
Council decision
9 The Council, at its meeting held on 27 February 2007, refused the application for the following reasons:
"1. The subject site for the proposed relocated dwelling lies in the Gazetted Townsite of Waroona and contains asbestos and therefore contradicts Shire of Waroona Planning and Development Services Policy 9.0 – 'Relocated Dwellings'.
2. The relocated dwelling is not in keeping with the character of dwellings in the locality[;] and
3. Approval of the dwelling would create an undesirable precedent for relocated dwellings in the townsites."
10 On 12 March 2007, Mr Karafil (applicant) applied to the State Administrative Tribunal seeking a review of the Council's decision.
Is planning approval required?
11 In considering this matter, the Tribunal found that a preliminary matter of whether planning consent was required for the development, the subject of the review, needed to be addressed. This issue was raised by the Tribunal with the parties and submissions taken on the matter.
12 The subject land is zoned "Urban 4 – Residential" with a permitted density of R12.5/R30 in the Shire of Waroona Town Planning Scheme No 7 (Municipal District) (TPS 7 or Scheme).
13 In "Table 1 – Zoning Table" of TPS 7 under the "Residential" column for the "Urban" area there is cross-referenced the use class "Single House" with the symbol "P".
14 TPS 7 provides at "Part 6.1 – Development of Land", cl 6.1.1:
(Page 5)
- "Subject to Clause 6.1.2, a person shall not commence or carry out development on any land zoned or reserved by the Scheme without first having applied for and obtained the Planning Consent of the Council in accordance with the provision of the Scheme."
15 However, cl 6.1.2 provides that:
"[E]xcept as otherwise provided in the Scheme, the following development does not require the planning approval of the Council:-
...
(c) the erection on a lot of a single house including any extension, ancillary outbuildings and swimming pools, except where:-
(i) the proposal requires the exercise of a discretion by the Council under the Scheme, including the Residential Planning Codes;
(ii) the development will be located in a Heritage Area designated under the Scheme;
(iii) the development will be taking place on a lot that does not have constructed road access and/or legal road frontage;
(iv) the development will occur on a lot that abuts the Harvey or Murray Rivers;
(v) the development will occur on land that is within the Peel Inlet Management Authority area unless such development is deemed by Council to be of a minor nature; or
(vi) the development will be taking place on any land that is within the 'Rural 6 - Rural Residential' Zone."
(Page 6)
17 Clause 1.7.3 of TPS 7 provides that where a word or term is defined in the Residential Planning Codes of Western Australian (2002) (Codes) that word or term, when used in respect of residential development, has the meaning given to it in the Codes. A "single house" is defined in cl 2.2 of the Codes as follows:
"Single House
A dwelling standing wholly on its own green title or survey-strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property."
18 The intention is clearly that the relocated dwelling will stand on its own survey strata lot as part of a group of four dwellings on Lot 1 with no areas held in common. However, while evidence was submitted that all the necessary approvals were in place the new titles and the survey strata plan had not, at the time the application was lodged with the Shire, been issued.
19 Thus at the time the application was made the proposed development could not be characterised as a "Single House" and fell within the definition of "Grouped Dwelling", which is defined under the Codes as:
"Grouped Dwelling
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property".
20 A "Group Dwelling" is an "AA" use within the "Urban 4 – Residential", that is a use the Council may permit at its discretion. Clearly, the exception provided for in cl 6.1.2(c) of the Scheme was not applicable and planning consent was required under TPS 7.
The respondent's position
21 At the hearing, Mr Davidson submitted that the Shire was relying upon cl 2.4 of TPS 7, which provides that the Council may make town planning scheme policies related to parts or all of the Scheme area and relating to one or more of the aspects of the control of development. The Tribunal was told that the respondent had prepared and adopted Shire of
(Page 7)
- Waroona Policy No 9.0 "Relocated Dwellings Policy" (Policy No 9)in accordance with the requirements set out in cl 2.4.1 of the Scheme.
22 In regard to Policy No 9, the respondent submitted that the Council perceived that there was an issue of condition and appearance with a relocated dwelling being brought into the Municipal area and as a consequence, Policy No 9was formally adopted. This occurred in September 2005.
23 The respondent further submitted that:
"While generally accepting of relocated dwellings, in 2006 Council became concerned with the number of relocated dwellings within residential areas that were not meeting a high standard of appearance and condition. As a consequence, Council directed the officers to prepare a modification to [Policy No 9] to indicate that relocated dwellings within townsites would not be approved by Council."
24 The resolution to modify Policy No 9 was taken at the Ordinary Meeting of the Council held in November 2006. Council carried out a public advertising period on the proposed amendment. Having regard to public submissions received, Council resolved to finally adopt the modification to Policy No 9 in accordance with cl 2.4.2(a) of the Scheme on 27 February 2007.
25 The amendment reads as follows:
"Council will not approve relocated dwellings within the boundaries of any gazetted townsite."
Planning Policy No 9.0 – "Relocated Dwellings Policy"
26 The intent of the Policy No 9 is set out in the background to the policy which states:
"In order to ensure that the existing standard of development and related level of amenity currently enjoyed within the Shire is not compromised it is essential controls are put in place to ensure that any relocated dwelling meets a high standard of appearance and condition."
27 This intent is reflected in the objectives of Policy No 9 which include the following:
(Page 8)
- • "To provide clear standards as to what constitutes an acceptable type of relocated dwelling."
and
• "To ensure the style, materials, condition, and design of a relocated dwelling is in keeping with the character of the area within which the dwelling is to be sited."
28 Policy No 9, at cl 9.5.4, sets out the parameters for Acceptable Development. This includes provisions covering:
• the compatibility of the design, scale, standard and appearance with the type of buildings which exist in the locality;
• the condition and appearance of the roof and wall clad materials;
• the need to enhance the visual appearance of the dwelling by the addition of verandahs (if required) or through screening and/or landscaping; and
• a requirement to locate the dwelling on the site so as to minimise the visual impact from public areas and neighbouring properties.
29 Evidence was provided by the respondent at the hearing that the proposed dwelling met the requirements of Policy No 9, with the exception of the recent amendment precluding relocated dwellings within the boundaries of any gazetted townsite. The subject land falls within the gazetted townsite of Waroona.
The issues
30 The issues to be addressed in this review arise from the reasons for refusal given by the Shire in regard to the decision of 27 February 2007:
"1. The subject site for the proposed relocated dwelling lies in the Gazetted Townsite of Waroona and contains asbestos and therefore contradicts Shire of Waroona Planning and Development Services Policy 9.0 – 'Relocated Dwellings'.
(Page 9)
- 2. The relocated dwelling is not in keeping with the character of dwellings in the locality[;] and
3. Approval of the dwelling would create an undesirable precedent for relocated dwellings in the townsites."
31 At the hearing, it was agreed between the parties that the proposed dwelling did not contain any asbestos.
32 Thus the substantive issues before the Tribunal were:
• whether the relocated dwelling was in keeping with the character of dwellings in the locality;
• if so, on the merits of this particular case it would be appropriate to relax the policy provision precluding relocated dwellings in gazetted townsites; and
• if the policy was relaxed, whether this would create an undesirable precedent.
Whether the relocated dwelling is in keeping with the character of dwellings in the locality
33 At the hearing, a series of photographs were presented of houses in the immediate vicinity of the proposed development, houses within 300 metres of the proposed development, two developments involving relocated dwellings under construction directly opposite the proposed development and a completed relocated house similar to the proposed development.
34 A review of this evidence established that the dwellings in the immediate vicinity generally comprise older single storey residences and terrace housing of variable quality. The relocated dwellings approved in the immediate vicinity of the proposed development prior to the amendment of the policy appear to provide a level of amenity somewhat higher than the existing housing stock. This conclusion also holds in the broader 300 metre area with the exception of the new residences currently being constructed by the Department of Housing and Works, which provide a standard well above that of the surrounding housing stock.
35 In regard to the example of the completed relocated dwelling similar to the proposed development, which is located in Fitzpatrick Street (two streets to the south), it was agreed by the respondent that this dwelling provided an acceptable standard of development. It was also agreed that,
(Page 10)
- as in that case, it would not be possible to see any "relocated" material on the dwelling the subject of the current review once the development was complete. The reason was that the building already had a new roof and the walls would be clad with new Hardiplank, Hardiboard or Hardi-Sheet cladding. In addition, all windows would be new and a front porch would be added to the dwelling.
36 In this context, the Tribunal finds that the proposed dwelling would not compromise the character of the locality.
Whether it would be appropriate to relax the policy provision precluding relocated dwellings in gazetted townsites
37 The Tribunal acknowledges that the respondent has prepared and adopted Policy No 9, and a subsequent amendment to the policy, to provide parameters for decision-making in relation to the relocation of dwellings in the Shire. However, policies should not be applied so inflexibly that where a variance may be appropriate it is simply rejected. As set out by Nicholson J in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522, "the function of the Tribunal is to have regard to that policy but to exercise its discretion in relation to it in the light of the evidence in the particular case". Although His Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal.
38 Clause 2.4.3 of the TPS 7 specifically states that "[a] Town Planning Policy shall not bind the Council in respect of any application for Planning Consent".
39 On the evidence presented in this particular case, the Tribunal determined that it would be appropriate to relax the policy requirement precluding relocated dwelling in gazetted townsites given that the proposed development clearly complies with the general intent of Policy No 9.
Whether the granting of planning consent would create an undesirable precedent
40 In Nicholls and Western Australian Planning Commission [2005] WASAT 40, the Tribunal, in dealing with the issue of precedent, referred to Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, where the Town Planning Appeal Tribunal stated at page 177 as follows:
(Page 11)
- "The Tribunal has been reluctant to place great importance on the undesirable precedent argument in several appeals for the reason stated in [Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)] at 10:
'The precedent argument is not usually treated by this Tribunal as a "stand alone" argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of development, should not be a reason why the appeal should be dismissed … '
The fact that a subdivision will result in an undesirable precedent is a valid consideration that has been accepted by the Supreme Court of South Australia in Mills v District Council of Willunga (1985) 61 LGRA 29. As stated in Aspen, and applied by this Tribunal in several instances, it will not defeat, on its own, a subdivision of merit."
41 While the Tribunal recognises that there is more than a mere chance or possibility that there may be later undistinguishable applications, the merit of the development the subject of this review has been clearly established and the review should be allowed. Any future applications should be considered and determined on their merits.
Conclusion
42 At the time the application was made to the Shire, the survey strata titles for the subject land had not been issued. The proposed development therefore fell within the definition of "Grouped Dwelling" rather than "Single House" and, as such, planning consent was required under TPS 7.
43 The substantive issues before the Tribunal are whether the proposed relocated dwelling is in keeping with the character of dwellings in the locality, and if so, in this case, it would be appropriate to relax the policy provision precluding relocated dwellings in gazetted townsites.
44 Having reviewed the evidence presented on the character of dwellings in the locality, the Tribunal found that the proposed dwelling would not compromise the character of the locality.
45 In this context, the Tribunal considers that on the evidence presented in this case, it would be appropriate to relax Policy No 9 requirement
(Page 12)
- precluding relocated dwellings in gazetted townsites given that the proposed development clearly complied with the general intent of Policy No 9.
46 While the precedent argument is relevant, the Tribunal determined that it should not defeat, on its own, a proposal of merit.
47 The application for review is allowed and planning consent for a relocated dwelling is granted under TPS 7.
Orders
48 For the above reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. Planning consent is granted under TPS 7 for the erection relocated dwelling at Lot 1 (No 25) Thatcher Street (Proposed Lot 2), Waroona as shown on the plans prepared by Giovanni Conte dated 10 February 2007.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
(Page 13)
Appendix 1
(Page 14)
Appendix 2
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