Kennedy and Shire Of Serpentine*Jarrahdale
[2008] WASAT 247
•24 OCTOBER 2008
KENNEDY and SHIRE OF SERPENTINEJARRAHDALE [2008] WASAT 247
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 247 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:163/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 24/10/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The application for review was dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANIEL KENNEDY SHIRE OF SERPENTINEJARRAHDALE |
Catchwords: | Town planning Application for approval to commence development Building exclusion zone Relocation of two significant mature trees Solar building principles and sustainability Orderly and proper planning Amenity Removal of one tree could result in the death of the second tree Building exclusion zones need to be more flexible |
Legislation: | Planning and Development Act 2005 (WA) s 252(1) Shire of SerpentineJarrahdale Town Planning Scheme No 2, Appendix 4A |
Case References: | Nil |
Orders | The application for review is dismissed |
Summary | The application for review was lodged against a decision of the Shire of SerpentineJarrahdale to refuse an application for approval to commence development of a single residence at No 2 (Lot 221) Aquanita Rise, Darling Downs.,The reasons for refusal related to the need to retain two significant mature trees within the front building exclusion zone in the interests of amenity, and not to allow their removal as proposed by the applicant.,In undertaking this review, the State Administrative Tribunal examined the respective arguments of the parties, the background to the proposal, the legislative and policy provisions, the proposed development itself, the likely effect of the removal of one tree only on the remaining tree and the matter of amenity.,Although the State Administrative Tribunal acknowledged the veracity of the applicant's argument to orient the proposed residence in an eastwest direction to take advantage of solar building principles, it could see no valid reason why a redesign of the home could not achieve these principles and still retain the two trees, subject to judicious pruning.,The State Administrative Tribunal acknowledged that some intrusion into the front building exclusion zone may be necessary but, providing no important indigenous vegetation was removed, the integrity of the Scheme provisions would be maintained in terms of orderly and proper planning and the preservation of the amenity of the immediate locality.,The application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KENNEDY and SHIRE OF SERPENTINEJARRAHDALE [2008] WASAT 247 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 OCTOBER 2008 FILE NO/S : DR 163 of 2008 BETWEEN : DANIEL KENNEDY
- Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords:
Town planning - Application for approval to commence development - Building exclusion zone - Relocation of two significant mature trees - Solar building principles and sustainability - Orderly and proper planning - Amenity - Removal of one tree could result in the death of the second tree - Building exclusion zones need to be more flexible
Legislation:
Planning and Development Act 2005 (WA) s 252(1)
Shire of SerpentineJarrahdale Town Planning Scheme No 2, Appendix 4A
(Page 2)
Result:
The application for review was dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Shire of SerpentineJarrahdale to refuse an application for approval to commence development of a single residence at No 2 (Lot 221) Aquanita Rise, Darling Downs.
2 The reasons for refusal related to the need to retain two significant mature trees within the front building exclusion zone in the interests of amenity, and not to allow their removal as proposed by the applicant.
3 In undertaking this review, the State Administrative Tribunal examined the respective arguments of the parties, the background to the proposal, the legislative and policy provisions, the proposed development itself, the likely effect of the removal of one tree only on the remaining tree and the matter of amenity.
4 Although the State Administrative Tribunal acknowledged the veracity of the applicant's argument to orient the proposed residence in an east-west direction to take advantage of solar building principles, it could see no valid reason why a redesign of the home could not achieve these principles and still retain the two trees, subject to judicious pruning.
5 The State Administrative Tribunal acknowledged that some intrusion into the front building exclusion zone may be necessary but, providing no important indigenous vegetation was removed, the integrity of the Scheme provisions would be maintained in terms of orderly and proper planning and the preservation of the amenity of the immediate locality.
6 The application for review was dismissed.
Introduction
7 The application for review, dated 30 April 2008, was lodged by Mr Daniel Kennedy (applicant) against a decision of the Shire of SerpentineJarrahdale (respondent or Council) on 7 April 2008 to refuse an application for approval to commence development of a single residence at No 2 (Lot 221) Aquanita Rise, Darling Downs (subject land).
8 The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
9 The reasons for refusal were:
(Page 4)
- 1. It involves the removal of two trees from the designated front building exclusion zone.
2. It would adversely impact the amenity of the area through removal of significant mature trees.
Subject land
10 The subject land, which is part of the Marri Fields Estate (Estate), can be described as No 2, (Lot 221) Aquanita Rise, Darling Downs on Certificate of Title Volume 2642, Folio 692. It can be found on Plan 51299.
11 The property is located on the southeast corner of Aquanita Rise and Butcher Road. It has a gradual downward slope to the northwest.
12 The subject land is 4,011 square metres in area with a frontage to Aquanita Rise of 33.992 metres, a rear boundary of 40 metres, a western boundary of 94.75 metres and an eastern boundary of 100.742 metres.
13 There are two significant building exclusion zones (exclusion zones) on the property with the larger of the two located towards the rear (south) and across the full width of the site. It contains three mature Marri trees.
14 The smaller exclusion zone is positioned towards the front (north) of the property with its western boundary adjacent to Butcher Road. It contains the two mature trees (Tree 1 and Tree 2) at issue in this review.
Legislative and policy framework
15 The subject land is zoned 'Rural' in the Metropolitan Region Scheme and 'Rural Living A' (RLA) under the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme).
Respondent's position
16 The position of the respondent is outlined in a Statement of Issues, Facts and Contentions dated June 2008. The respondent contends:
(a) The removal of the two trees within the northern exclusion zone is likely to impact on the amenity of the locality.
(b) By virtue of the removal of one tree within the exclusion zone, the root system and the stability of the second tree will be severely compromised.
(Page 5)
- (c) The removal of the trees does not comply with Special Provision 3 under RLA 21 within TPS 2.
Applicant's position
17 The position of the applicant is outlined in his Statement of Issues, Facts and Contentions dated 22 June 2008. The applicant contends:
(a) The removal of the two trees within the smaller (northern) exclusion zone will have a positive impact on the amenity of the locality. It will allow a north facing house to be built on an eastwest axis to take advantage of solar building principles and have a positive impact on sustainability.
(b) The view that the removal of one tree would likely result in the death of the second tree appears to be the personal opinion of some of the Councillors, but no evidence has been given to support this view. In any case the application is for the removal of two trees within the smaller (northern) exclusion zone.
(c) Although TPS 2 states that no vegetation within the exclusion zone is to be removed, not all exclusion zones with the Estate are workable when it comes to building. The exclusion zones need to be more flexible to allow owners to build on their property.
(d) The location of the smaller exclusion zone makes it very difficult to fit a north facing dwelling on the property. To build on the lot requires vegetation to be removed from the smaller front exclusion zone or the larger rear exclusion zone. However, the applicant is not applying to remove any vegetation from the rear exclusion zone.
(e) To build outside both exclusion zones the dwelling would have to run northsouth with the long section facing east and west. This orientation could not take advantage of solar orientation principles, and would not comply with the respondent's views on sustainable development.
(f) The respondent's desire to retain as much of the existing vegetation and trees is admirable, but it must recognise that in doing so it makes it impossible to comply with its views on sustainable
- development when building on a lot.
Planning issues
18 The principal planning issues are:
(a) Is it appropriate, in the interests of orderly and proper planning, to remove two existing mature trees in the front (northern) exclusion zone?
(b) Would the removal of the two trees be likely to have an adverse impact on the visual amenity of the locality?
Assessment of the proposal
Background
19 The background to the current application is outlined in the respondent's Statement of Issues, Facts and Contentions. The statement explains:
(a) On 5 November 2007 the applicant sought planning approval to remove two mature trees within the front (northern) exclusion zone to allow building within the zone.
(b) At the Ordinary Meeting of Council on 25 March 2008 the planning officer's report was considered. It recommended the removal of one tree only.
(c) The decision of Council, as relayed to the applicant on 7 April 2008, was to refuse the application in accordance with [9] above.
(d) As part of the refusal the following advice was provided:
Advice Notes:
1. Council formed the view that the removal of only one tree, would likely result in the death of the second nearby tree. Therefore the application for removal of any trees was refused.
2. The Shire advises that no approvals will be issued for any development within the rear exclusion zone on the subject property or for the removal of any further vegetation.
(Page 7)
- (e) As a result of the Council's refusal the application for review was lodged with the Tribunal on 30 April 2008.
Legislative and policy provisions
Shire of SerpentineJarrahdale Town Planning Scheme No 2
20 Under TPS 2 the subject land falls generally within the RLA zone and specifically within RLA 21 for the Estate.
21 In Appendix 4A - Rural Living A Zone, under Special Provision No 2 the Scheme states:
No indigenous vegetation or trees shall be destroyed or cleared except, but subject to the developer of the estate or landowner obtaining the prior consent of the Council in writing, where such vegetation is dead, diseased or where the clearing is required for the purpose of a firebreak, dwelling, outbuilding, fence, drainage systems, driveways and/or to accommodate the permitted or discretionary uses identified under special provision 1.
22 On the issue of the removal of vegetation within the exclusion zones, Special Provision No 3 for the Estate states:
Notwithstanding special provision 2, vegetation within the areas designated as 'Strategic Revegetation' and/or 'Building Exclusion' on the endorsed Subdivision Guide Plan are not permitted to be removed. This strictly includes the 13 Marri (Eucalyptus Calophylla) trees identified across the subject land as significant in the feeding cycle of the RedTail, Black and Baudin Cockatoos (Calyptorhynelus funerous latirotris). Lots which contain these trees, or any areas of 'Strategic Revegetation' and/or 'Building Exclusion' are to have a suitable notification placed on the certificate of title (prior to creation) advising of this requirement to the satisfaction of the Council.
The proposed development
23 In a letter dated 2 November 2007 from the applicant to the Shire, the following points were made:
(a) To build a house in front of the front (northern) exclusion zone would bring the house very close to the Aquanita Rise frontage.
(b) To build a house at the rear of the front exclusion zone would result in very little space available for a shed and pool, due to the close proximity of the larger rear (southern) exclusion zone.
(Page 8)
24 In the planning officer's report to Council on 25 March 2008, there were a number of plans attached. Plan No SDO 75.5/03/08 shows the following:
(a) The proposed northfacing residence is orientated eastwest and is positioned on fill between the front and rear exclusion zones. The fill affects both the front and rear exclusion zones to a minor degree.
(b) The access to the garage at the rear of the proposed residence is via a brick paved driveway with access to Butcher Road. The driveway is located within the northwest corner of the rear exclusion zone.
(c) The combined effect of the driveway and the fill on the rear exclusion zone appears to be in the order of some 10% of its gross area.
Building exclusion zones and their effect on development
25 In the planning officer's report the following comments were made:
Although the Scheme states that no vegetation within the building exclusion zones are permitted to be removed at all, it is considered that some of the exclusion zones need to be more flexible to allow owners to build on their property.
…
The building exclusion zones for the Marri Fields Estate… were determined at the time of subdivision. The intent of the exclusion zones is to help preserve the vegetation that is considered to be the most worthy of retention. However, it is acknowledged that not all exclusion zones are workable when it comes to building on the property
…
The rear exclusion zone cannot be touched at all, as it contains three (3) of the thirteen (13) Marri trees from which the Estate gained its name.
…
In keeping with sustainable development and solar orientation principles, the proposed dwelling is to be located on an eastwest axis and will face north to maximise the effect of winter sun. In order to build entirely outside both exclusion zones it is considered that the dwelling would have to be rotated to run northsouth, with the long section of the dwelling facing east and west. This orientation would not be supported.
(Page 9)
- A site visit to the property indicated that only one (1) tree, closest to the proposed residence would need to be removed in order for the dwelling to fit on the land. There is no need for both trees to be removed as agreed to by the applicant on site. By removing this one tree (shown as Tree 1 on the site plan),the proposed dwelling could be moved approximately 7.0 metres north, providing enough room between the dwelling and the rear exclusion zone for further developments (for example shed and pool).
26 However, it is clear from the refusal of on the planning application, as outlined in [9] above, that the planning officer's rationale did not gain the support of the Council and that the retention of the two mature trees (Tree 1 (south) and Tree 2 (north)) was a more important planning consideration than the proposed development itself.
The likely effect of the removal of Tree 1 on Tree 2
27 In the 'Response to the Applicant's Submissions …', dated July 2008, the Council's Manager, Environmental Services, advised:
Removal of Tree 1… will have an impact on Tree 2 in the following ways:
• Firstly, as much of the root systems are intertwined, the dead root matter left from Tree 1 (if removed) will likely decay the root system of Tree 2 resulting in fungal attacks on Tree 2;
• Secondly, compounding the chances of Tree 2 dying is the fact that the hydrological regimes will change in the groundwater following associated clearings, tree removal and construction activities making a much wetter soil whereby fungi such [as] dieback, armalaria and other soil borne fungi will be able to attack Tree 2.
A severe pruning of either or both trees is recommended. This will reduce the area of influence of the tree altogether allowing for plenty of room for both the dwelling and the trees. With the trees occupying much less space above ground, it will allow them to gather energy to reshoot following the construction period and will enable the trees to remain healthy and shaped to suit the residents, the future dwelling and its ambience in terms of shade, biodiversity and other benefits associated with native tree retention for the residents and the wider community.
28 In the applicant's response to these suggestions, dated 4 August 2008, it states:
The applicant does not agree that a severe pruning of either or both trees would allow plenty of room for both a future dwelling and the trees. The applicant would like to build in the smaller exclusion zone. Building regulations require that the dwelling be 2 metres from the drip line of the trees. Even if the trees were severely pruned with almost all branches removed the branches would eventually grow back and extend beyond and over the dwelling.
(Page 10)
The matter of amenity
29 One of the reasons for refusal was that the removal of the two significant mature trees would adversely impact on the amenity of the area.
30 In the respondent's draft 'without prejudice' subdivisional conditions, dated July 2008, it advises that if the two mature trees were to be removed:
2. Ten (10) new trees (minimum 45 litre bag) of a species locally indigenous to the area being planted elsewhere on the lot to the satisfaction of the Director Strategic and Community Planning within 12 months… .
31 The respondent advised that the requirement for 10 trees to be planted is derived from Council's draft Revegetation Policy which requires the replacement of trees to be at a ratio of five plants for every one plant removed.
32 The response of the applicant to the 'draft' condition was to accept the requirement to plant ten new trees but within a 12 to18 month period to allow for delays in building.
33 From an examination of photographic evidence available to the Tribunal (marked SDO 75.4/03/08), it is clear that the two trees are of a significant size and are positioned in a relatively open area on the subject land with further open pasture land to the west and northwest of the property.
34 There is little doubt in the mind of the Tribunal that the removal of the two mature trees in the front exclusion zone would adversely impact the existing visual amenity, and that the placement of ten new trees would have little compensatory value in terms of size and shade within the first five years of their planting.
Conclusions
35 The application for review was lodged against a decision of the Shire of SerpentineJarrahdale to refuse an application for approval to commence development of a single residence at No 2 (Lot 221) Aquanita Rise, Darling Downs.
(Page 11)
36 The reasons for refusal related to the need to retain two mature trees within the front building exclusion zone and the resulting adverse impact on the amenity of the area if the two trees were removed.
37 In undertaking this review, the Tribunal examined the respective position of the parties, the background to the proposal, the legislative and policy provisions, the proposed development itself, the likely effect of the removal of one tree only on the remaining tree and the matter of amenity.
38 The position of the applicant is that by the removal of both trees it would allow a northfacing house to be built on an eastwest axis, and would allow the residence to take advantage of solar principles and have a positive impact on the Council's overall sustainability objectives.
39 The view was also put that the exclusion zones need to be more workable and flexible when it comes to actually building on a lot and that only the front exclusion zone (and not the rear (larger) exclusion zone) would be affected.
40 The position of the respondent is that the removal of the two mature trees would not comply with Special Provision 3 under the RLA zone and that their removal would be likely to impact on the amenity of the locality.
41 The respondent also argued that the removal of one tree only could adversely affect the root system of the second tree, and therefore its stability.
42 Under Special Provision 2 for the Marri Fields Estate, the Scheme advises that no indigenous vegetation or trees are to be cleared, unless the prior consent of Council is obtained. Importantly, clearing is allowed for the purposes of firebreaks, dwellings, etc.
43 However, on the question of the removal of vegetation within an exclusion zone, Special Provision 3 states that no vegetation is to be removed.
44 Quite clearly this lack of flexibility severely limits an applicant's design intentions for a particular type of residence, and this is exactly the reasoning of the applicant which was acknowledged as a valid argument in the planning officer's report to Council on 25 March 2008.
45 Having said that, it is the Tribunal's view that a land developer should be aware, or have been made aware, prior to land purchase of any building restrictions rather than attempt to modify these restrictions after the land purchase.
(Page 12)
- In fact, these restrictions should, as outlined in [22] above, have been placed on the Certificate of Title.
46 On the matter of the trees themselves, it is the case that they are two attractive mature trees and that every attempt should be made to keep both of them in the interests of the amenity of the locality. It is also the case that on advice from Council's Manager, Environmental Services, that the removal of Tree 1 (south) could, over time, jeopardise the life of Tree 2 (north).
47 Although the Tribunal acknowledges the logic of the applicant's arguments in terms of solar building principles, it can see no reason why the design of the home could not be modified to form an 'L' shape with the major orientation of the residence being eastwest as proposed and the foot of the 'L' shape being oriented northsouth.
48 To supplement such a design change Tree 1 (south), and possibly Tree 2 (north), should be pruned under the supervision of Council's Environmental Officer and again, in the years ahead, when growth occurs and re-pruning becomes necessary.
49 Such dual action of a redesign of the residence and a pruning of one or both trees would allow the residence to be moved to the north, and further away from the rear exclusion zone.
50 It would also seem sensible for any future pool (which is not part of the current planning application) to be positioned on the sunny north side of the residence and it may also be worth positioning the garage on the north side with access to the property from Aquanita Rise and not Butcher Road.
51 These suggestions are not intended as requirements of the Tribunal but simply to point out that there are design options available on the subject land, at 4,011 square metres, despite the restrictions imposed by both the front and rear exclusion zones.
52 However, the Tribunal accepts that some intrusion into the front exclusion zone may be necessary, but providing no important indigenous vegetation is removed, the integrity of the Scheme provisions will be maintained.
53 In that sense, the retention of Tree 1 and Tree 2 within the front exclusion zone would address both planning issues outlined in [18] above in that it would be in accordance with orderly and proper planning as required by the
(Page 13)
- Scheme, and also assist in maintaining the amenity of the immediate locality.
54 The application for review is dismissed.
Orders
55 For the foregoing reasons, the Tribunal orders that:
1. The application for review is dismissed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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