KONSTEK and SHIRE OF BUSSELTON
[2007] WASAT 273
•18 OCTOBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | KONSTEK and SHIRE OF BUSSELTON [2007] WASAT 273 |
| MEMBER | : | MR L GRAHAM (SENIOR SESSIONAL MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 18 OCTOBER 2007 |
| FILE NO/S | : | DR 242 of 2007 |
| BETWEEN | : FRANK KONSTEK |
Applicant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Town planning - Application for planning consent - Visual amenity - Front setback line - Previous planning consent - Extension of the existing deck/balcony - Old Dunsborough special character area
Legislation:
Planning and Development Act 2005 (WA), s 241(1), s 252(1)
Residential Design Codes of Western Australia (2002), cl 1.1.1, cl 1.3.3, Table 1
Shire of Busselton District Town Planning Scheme No 20, cl 6(3), cl 13(1),
cl 14(1), cl 14(2), cl 30, Sch 6(30)(3)
Town Planning and Development Act 1928 (WA), s 5AA
[2007] WASAT 273
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Konstek and Anor v Shire of Busselton [2004] WATPAT 147
[2007] WASAT 273
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The application for review was lodged against a condition of
approval imposed by the Shire of Busselton to require a 6.5 metre setback for an extension to an existing front deck/balcony. The applicant had proposed a 6.0 metre setback only.
2 The Tribunal examined the respective arguments of the parties, the
background to the proposal, the relevant legislative and policy provisions and the effect of the existing adjoining development to the east on the visual amenity of the applicant.
3 The Tribunal determined that a balance was required to preserve the
integrity of the setback standards but to restore in part the visual amenity lost to the applicant by an adjoining development which, according to the respondent, was assessed in error and approved in 2002.
4 It was the Tribunal's view that a decision taken by the former Town
Planning Appeal Tribunal in 2004 on a similar application by the applicant did get the balance right by requiring at least a 6.5 metre setback.
Accordingly, the application for review was dismissed and the decision under review upheld.
Introduction
6 The application for review was lodged by Mr Frank Konstek
(applicant) on 31 July 2007 against a decision of the Shire of Busselton (respondent) on 20 June 2007 to approve the extension of the existing outdoor timber decking, but subject to a condition unacceptable to the applicant.
7 The application was made under the provisions of s 252(1) of the
Planning and Development Act 2005 (WA) (PD Act) and specifically against condition 4 of the approval which states:
"4. Plans submitted with the building licence are to be modified to show the deck/balcony area being extended no further forward than 6.5 metres from the front setback line." [2007] WASAT 273
Subject land
8 The subject land can be described as Lot 73 S/L 10 HSE
9 Finlayson Street, Dunsborough and is located on the south side of the
street with views across Point Dalling to Geographe Bay.
There is an existing single-storey residence on the property with a large front balcony positioned on its north-east corner.
As the land slopes from west to east it has allowed for an under-storey double garage beneath the front balcony.
11 There is extensive planting on the street verge in front of the property
and within the front setback. The residence is partly obscured by the
vegetation when viewed from the street.
Legislative framework
The subject land is zone "residential" under the Shire of Busselton District Town Planning Scheme No 20 (TPS 20). It has a coding of R15.
The property falls within policy area 3 of the Old Dunsborough Special Character Area (ODSCA) policy document.
14 Of relevance also are the Residential Design Codes of Western Australia (2002) (Codes), which were published as a statement of planning policy under s 5AA of the Town Planning and Development Act 1928 (WA).
The Tribunal is required, under s 241(1) of the PD Act, to "… have regard …" to any State planning policy when determining an application.
Respondent's position
The position of the respondent is outlined in the "Respondent's Submissions" of 22 August 2007. The arguments include:
(a)
The development application sought a 6.0 metre front setback for the deck/balcony rather than the 7.5 metre front setback requirements of the ODSCA and Sch 6 of TPS 20.
(b)
The proposal does not comply with the relevant provisions of TPS 20, the ODSCA or the Codes.
[2007] WASAT 273
(c)
Whilst it is acknowledged that the adjoining development to the east does extend into the 7.5 metre setback area, the respondent is now of the opinion that an error was made at the time of the assessment and in the light of further information provided since then.
(d)
A 6.0 metre setback is not appropriate as the majority of adjoining/nearby lots fronting Finlayson Street are set back in excess of 7.5 metres. A 7.5 metre primary street setback is considered important with regard to maintaining and enhancing the character and uniqueness of the Old Dunsborough area.
(e)
A restrictive covenant exists to the benefit of an adjoining owner to the west (11 Finlayson Street) with respect to the subject land which states:
"1.1 Not to erect or commence or permit or suffer to be
erected or commenced on the lot.
(a)
any single-storey portion of a building having a setback closer than 7.6 metres.
(b)
any double-storey portion of a building having a setback closer than 9.6 metres from the front northern boundary of the Lot."
These restrictions are reflected in TPS 20.
(f)
Although the respondent issued a previous planning consent for a similar proposal on the subject land with a 6.5 metre setback, this was done to be consistent with a previous decision of the former Town Planning Appeal Tribunal in 2004.
(g)
The respondent maintains that any further reduction in setback forward of a 6.5 metre setback would represent "incremental creep," and would be inconsistent with the setback of the other properties in the street which do not have an average setback less than 7.5 metres.
[2007] WASAT 273
Applicant's position
The position of the applicant is outlined in the "grounds" for seeking a review. The applicant argues:
(a)
The reason behind extending the balcony with a 6.0 metre setback is to regain ocean views that were lost when the adjoining neighbour to the east (Lot 51 (7) Finlayson Street) constructed a balcony to a 6.1 metre setback with a further 500 metre cantilever roof projection. This balcony has a floor to ceiling screen which has considerably reduced views from the subject land.
(b)
The ability to develop up to a 6.0 metre front setback is provided for under the Codes and under the ODSCA.
(c)
The discretion to develop up to a 6.0 metre front setback was granted to Lot 51 with the primary justification from Council being that the balcony was screened from the street by verge planting. The proposal on the subject land has considerably less visual bulk, and considerably more verge planting to screen it from the street.
(d)
The respondent's decision to reject the proposed 6.0 metre setback was previously appealed through the former Town Planning Appeal Tribunal. A 6.5 metre setback was settled on.
(e)
The neighbour's concerns about a loss of privacy have been dealt with by their own act of erecting a floor to ceiling screen.
(f)
The respondent's concerns about maintaining a 7.5 metre setback were compromised when they allowed the owner of Lot 51 to develop to a 6.1 metre front setback. This decision considerably disadvantaged the applicant.
Planning issues
The principal planning issue is:
(a)
Is the applicant's proposal to extend the existing deck/balcony to a 6.0 metre front setback reasonable in the circumstances of this case?
[2007] WASAT 273
Assessment of proposal
Background
The background to the proposal can be broadly summarised:
(a)
An application for planning consent for an extension of the existing deck/balcony to a 6.0 metre setback from the front/street boundary was made on 19 March 2004.
(b)
Development approval was granted on 11 May 2004 but it included a condition 4(i) that:
"The deck/balcony area being extended no further
forward than the 7.5 metre front setback line."
(c)
An appeal was subsequently lodged against this condition with the then Town Planning Appeal Tribunal and a determination made on 9 August 2004.
(d)
The determination was made in Konstek and Anor v Shire of Busselton [2004] WATPAT 147 (9 August 2004) and advised at [21]:
"21.
For the reasons now published the appeal is allowed and Condition 4 of the approval dated 11 May 2004 is deleted, and replaced with a new condition requiring that the development be set back at least 6.5 m from the front of the site."
(e)
For reasons not known to this Tribunal the applicant did not proceed with the development within the two year approval period.
(f)
On 30 April 2007 a new development application was lodged with the respondent to extend the deck/balcony to a 6.0 metre front setback.
(g)
The application was granted conditional approval on 20 June 2007 with a condition 4 allowing the deck/balcony to extend no further forward than 6.5 metres from the front setback line.
[2007] WASAT 273
(h) An application for review against condition 4 was lodged with the Tribunal on 17 July 2007 but was unsigned and required resubmission. (i) A new (signed) application for review was lodged on 31 July 2007.
Statutory and policy matters
Town Planning Scheme No 20
Under cl 6(3) "Relationship of Scheme to Residential Planning Codes" it states:
"Except as otherwise provided for in the Scheme, the use and development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes."
Under cl 13(1) "Matters to be Considered" it states:
"In determining applications for planning consent the Council shall take into consideration such of the following matters as are of relevance to the development the subject of that application.
…
(c)
the effect of the development on the landscape or scenic quality of the locality.
… (e)
the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development.
… (h)
the relationship of that development to development on adjoining land or on other land in the locality.
… (q)
the existing and likely future amenity of the neighbourhood.
[2007] WASAT 273
…
(s) the circumstances of the case; and (t) the public interest."
Clause 14(2) "Determination of Applications" states:
"The Council having regard to any matter which it is required by the Scheme to consider, and to the orderly and proper planning of the locality and the preservation of the amenities of the locality, may refuse to approve any application for planning consent or may grant its approval unconditionally or subject to such conditions as it thinks fit."
The provisions of cl 30 "Special Character Area" are relevant to this
matter:
"(2) The Council may devise development objectives, provisions and/or controls to reinforce, retain or change the characteristics, form and nature of a designated Special Character Area, with such objectives, provisions and/or controls being specified in Sch 6 to this Scheme.
(3) Where such objectives, provisions and/or controls are specified in Sch 6 in relation to a designated Character Area, then those objectives, provisions and/or controls act in conjunction with the other provisions of this Scheme relevant to that area with the exception that the provisions of Sch 6 will take precedence over any other provisions of this Scheme."
Under Sch 6(30)(3) there are specific controls relating to setbacks within the ODSCA. These state:
"Primary street setbacks shall be a minimum of 10.0 metres in Policy Area 1 pursuant to the Old Dunsborough Special Character Area Policy (ie generally lots fronting the foreshore from Vincent Street, Bayview Crescent and Hurford Street). Elsewhere, the primary street setback shall be a minimum of 7.5 metres unless adjoining development and/or site conditions indicate that a minimum setback of 6.0 metres would be appropriate."
[2007] WASAT 273
25 It is clear to the Tribunal that TPS 20 provides the respondent with a
wide range of matters to consider when determining an application for planning consent, and that it can use its discretionary powers when doing so.
26 It is also clear that although Sch 6(30)(3) specifies a minimum
7.5 metre setback from the street boundary in policy area 3, that this figure can be varied to as little as 6.0 metres depending on the circumstances of the case; including the influence of adjoining development.
Old Dunsborough Special Character Area Policy
This policy was adopted by Council on 9 February 2000 with a Statement of Intent which advises:
"The character Council wishes to retain is that of generally low density housing with large, open setbacks in an attractive coastal setting."
Under cl 4.3 (Streetscape) the policy states:
"The majority of the Policy Area is characterised by lots which are 800 [metres squared] in area and above as a result of the earlier development associated with Old Dunsborough. The majority of lots have managed to retain a traditional setback of 7.5 m which makes a significant contribution to the Special Character of the area and should be maintained wherever possible."
Under cl 4.4 (Building Form, Style and Density) the policy states:
"The majority of dwellings throughout the Policy Area have either a front verandah or a porch area, which is generally considered appropriate.
…
Essentially, the main characteristic of building form and style that shall be encouraged in future development is to create an inherent 'lightness' of structure with frame construction."
Under cl 5.2(a) (Vegetation Controls) the policy states:
[2007] WASAT 273
"As part of the development application process all significant
vegetation shall be retained where practical."
31 It is clear to the Tribunal that there is a strong emphasis in the policy
to try and maintain, as far as possible, the original character of the Old Dunsborough area and that the important components of building setback (7.5 metres), front verandahs, the "lightness" of structure (weatherboard and timber-type appearance) and retention of vegetation are integral components of this character.
Residential Design Codes
The Codes provide for local planning policies under cl 1.1.1 "Purpose of the Codes".
"Where particular matters of a local nature demand particular planning controls, it is intended that the Codes should be complemented by Local Planning Policies adopted under the town planning scheme, or by specific provisions of the scheme. Such variations and policies should be limited to matters which are peculiar to a particular locality."
The matter of variations to the Codes is addressed under cl 1.3.3 "Town Planning Schemes":
"… where, for historical or special circumstances, variations to the Codes are included in the town planning scheme, these provisions would prevail over the Codes."
34 In this particular case, Table 1 "General Site Requirements" specifies
a minimum setback from the primary street of 6.0 metres in residential zoned areas coded R15. However, the ODSCA policy adjusts this setback to 7.5 metres minimum, but with a variation provision to 6.0 metres depending on the circumstances of the case.
The matter of adjoining development
35 In December 2002 the Council considered a planning report for the
alterations and additions to an existing residence at Lot 51 (7) Finlayson Street. The property is adjacent to and immediately east of the subject land.
36 The proposals included a covered balcony on the upper floor with a
setback of 6.1 metres from the front boundary in lieu of the required
7.5 metre minimum setback.[2007] WASAT 273
37 Other concessions sought were a 2.76 metre setback to the northern
side boundary for the upper floor in lieu of the 4.0 metre setback specified in the Codes, and a building height above "finished ground level" of 8.0 metres instead of the maximum permitted height of 7.5 metres.
38 In accordance with cl 14(1) of TPS 20 the proposal was referred to
adjoining landowners for comment and somewhat surprisingly was supported by the then owner of the subject land, although opposed by the owner of Lot 72 (11) Finlayson Street. That property is west of and adjacent to the subject land and is located further up the hill.
The 2002 assessment report advised:
"It is considered that the proposed development will have a minimal impact upon the streetscape and the adjoining properties. The view to Geographe Bay from the objector's front balcony is already obstructed by the existing dwelling and the proposal will not have a further impact upon this view."
As noted previously in these reasons (see [16(c)]), the respondent is now of the opinion that an error was made at the time of the 2002 assessment which was then supported and approved by Council.
Conclusions
41 The application for review was lodged by Mr Frank Konstek against
a decision of the Shire of Busselton to approve the extension of the
existing front deck/balcony, subject to conditions.42 The specific condition objected to was that requiring a 6.5 metre
setback from the front boundary, rather than the 6.0 metre setback sought
by the applicant.43 The Tribunal has examined the respective arguments of the parties,
the background to the proposal, the relevant legislative and policy provisions and the effect of the existing adjoining development to the east on the visual amenity of the applicant.
44 The position taken by the respondent is that a 6.0 metre front setback
would be contrary to the provisions of TPS 20, the ODSCA and the Codes, and whilst acknowledging that the adjoining development to the east has a 6.1 metre setback, the respondent now accepts that an error was made at the time of the assessment in approving that development in 2002.
[2007] WASAT 273
45 The respondent also argues that a 7.5 metre setback is important to
maintain and enhance the character and uniqueness of the Old Dunsborough area, but accepts an earlier decision of the former Town Planning Appeal Tribunal in 2004 to support a 6.5 metre setback in order to maintain consistency. Its current approval to allow a 6.5 metre setback accords with that decision.
46 The applicant argues that the reason behind the application for
review is to regain ocean views that were lost when the adjoining neighbour to the east constructed a balcony with a 6.1 metre setback. Also, that a 6.0 metre setback is provided for under the Codes (at R15) and the ODSCA.
In examining this matter it is clear to the Tribunal that TPS 20 provides the respondent with a wide range of matters to consider when determining an application for planning consent, and that it can use its discretionary powers when doing so. Also, that although Sch 6(30)(3) specifies a minimum 7.5 metre setback that this figure can be varied to as little as 6.0 metres depending on the circumstances of the case, including the influence of adjoining development.
48 Under the ODSCA there is a strong emphasis in the policy to try and
retain, as far as possible, the original character of the Old Dunsborough area by way of the important components of building setback (7.5 metres), front verandahs, the "lightness" of structure (weatherboard and timber-like appearance) and vegetation.
49 Regarding the Codes, there is provision for variation to its standards
by way of local policy, and the 6.0 metre setback specified in an area coded R15 has in effect been replaced by the 7.5 metre setback in TPS 20 and the ODSCA; albeit with the "variation" provisions in TPS 20 to 6.0 metres where appropriate.
50 The Tribunal was assisted in this matter by way of an on-site visit by
Senior Sessional Member Graham on Tuesday, 18 September 2007, in company with the parties. The following was clear:
(a)
It is possible to view the ocean when looking to the north-east from the existing front balcony on the subject land.
(b)
The view has been considerable reduced by the presence of the adjoining development to the east; particularly the upper floor balcony and a floor to ceiling screen.
[2007] WASAT 273
(c) The proposal to extend the existing deck/balcony forward as an unroofed structure would not conflict with the terms of the restrictive covenant made in favour of the adjoining neighbour to the west, as there would be no "single-storey portion of a building" constructed that would obscure views from that property.
The outstanding issue, however, is how far forward the proposed deck/balcony should project towards the front boundary.
52 In that respect the circumstances of this matter are such that the
development approved in 2002 on the adjoining Lot 51 to the east has considerably compromised the respondent's position in arguing for the retention of a 7.5 metre setback on the subject land.
53 But it is also the case that to uphold the application would bring the
proposed extension to within 6.0 metres of the front boundary which would be marginally closer than the 6.1 metre setback on the adjoining property to the east. The Tribunal could not support such a proposition.
54 The Tribunal believes that a balance needs to be found to preserve
the integrity of the setback standards of TPS 20 and the ODSCA but also to restore in part the visual amenity to the applicant which was significantly affected with the construction of the balcony on the adjoining Lot 51. The planning assessment which led to that approval has now been acknowledged by the respondent as an error.
55 It is the Tribunal's view that the decision taken in Konstek and Anor v Shire of Busselton [2004] WATPAT 147 (9 August 2004) did get the balance right by requiring "… that the development be set back at least 6.5 m from the front of the site."
56 A similar decision in this case would be made in the context of an
unobtrusive and uncovered timber deck/balcony being positioned a metre forward of the desired 7.5 metre setback but being constructed of "light" materials and largely hidden by vegetation. In these respects (building form and vegetation) such an approval would accord with the ODSCA policy.
57 The Tribunal believes that the applicant's proposal to extend the
existing deck/balcony to a 6.0 metre front setback is not reasonable in the circumstances of this case as it would send the wrong signal to other landowners in Finlayson Street and is not necessary in order to regain views that were previously lost.
[2007] WASAT 273
For the foregoing reasons the orders of the Tribunal are:
1. The application for review is dismissed. 2. The decision under review is upheld.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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