LARRATT and CITY OF ARMADALE
[2009] WASAT 75
•23 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LARRATT and CITY OF ARMADALE [2009] WASAT 75
MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: 10 FEBRUARY 2009
DELIVERED : 23 APRIL 2009
FILE NO/S: DR 314 of 2008
BETWEEN: DANIEL WAYNE LARRATT
COLLEEN LARRATT
ApplicantAND
CITY OF ARMADALE
Respondent
Catchwords:
Town planning - Development - Retrospective development approval - Refusal - Transportable building - Ancillary accommodation - Development envelope - Amenity of locality - Direction notice
Legislation:
City of Armadale Town Planning Scheme No 4, cl 1.6, cl 4.2.2, cl 4.3, cl 5.3, cl 5.3.1, cl 5.9, cl 5.9.1, cl 5.9.2, cl 6A.6.1, cl 8.1, cl 8.4.1, cl 10.2, cl 11.4.1, Pt 4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 214, s 252, s 255
Residential Design Codes of Western Australia (2008), cl 7.1, cl 7.1.1
State Administrative Tribunal Act 2004 (WA)
Result:
The application for review is dismissed.
The respondent's decision to refuse retrospective development approval is affirmed.
The respondent's decision to issue direction notice is affirmed.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr M Handcock
Solicitors:
Applicant: Self-represented
Respondent: Downings Legal
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of a refusal by the City of Armadale of retrospective planning approval for ancillary accommodation and development envelope modification at No 6 (Lot 101) Trewarn Place, Bedfordale.
It was the view of the City of Armadale that the transportable building installed on the subject site did not comply with the City of Armadale Town Planning Scheme No 4 in terms of appearance and location and would have an adverse impact on the amenity on the locality.
The applicant argued that the transportable building was a cost‑effective means of housing a family member and had been placed in a location that allowed it to be screened from adjoining properties.
The Tribunal agreed with the City of Armadale and found that the materials and design of the transportable building as well as its location outside the approved development envelope would have an adverse impact on the amenity of the locality.
The application for review was dismissed and the decision of the respondent to refuse retrospective planning approval was affirmed.
The matter also involved the review of a direction notice issued by the City of Armadale to remove the already installed but unapproved building from the same property. Given the Tribunal's decision to uphold the City of Armadale's refusal to grant retrospective planning approval, their decision to issue a direction notice was also affirmed.
Introduction
These proceedings involve applications brought by Mr Daniel Wayne Larratt and Mrs Colleen Larratt (applicant), pursuant to s 252 and s 255 of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Armadale (respondent or City) made on 23 June 2008 to issue a directions notice requiring the removal of an unauthorised dwelling from No 6 (Lot 101) Trewarn Place, Bedfordale and to refuse retrospective planning approval for ancillary accommodation and development envelope modification at No 6 (Lot 101) Trewarn Place, Bedfordale.
Site and locality
The subject site is No 6 (Lot 101) Trewarn Place, Bedfordale. It is a large residential block with an area of 5,740 square metres and forms part of the Churchman Brook Estate.
The Churchman Brook Estate is a residential subdivision consisting of large treed blocks with single and two storey dwellings sited to take advantage of views to the adjacent state forest and over the coastal plain to the west. It is a low density subdivision with a semi-rural feel in the hills of the Darling Ranges.
The subject site is accessed by a private road of approximately 50 metres in length and is situated to the north of Lot 103 Trewarn Place. It abuts Lot 100 to the east, Lot 102 to the south‑west and public open space to the north. The public open space is zoned 'Parks and Recreation' under the Metropolitan Region Scheme (MRS) and contains trees and shrubs.
There is an existing single storey brick and tile dwelling located to the centre of the site and a large sheet metal shed located towards the north‑east corner of the site.
The transportable building, the subject of this review, is already installed and located immediately to the north of the shed.
Planning framework
The site is zoned 'Rural' under the MRS and 'Special Residential' under the City of Armadale Town Planning Scheme No 4 (TPS 4 or Scheme). Clause 1.6 lists aims of TPS 4 and includes:
(c) To promote a sense of place and community identity for residents by fostering a distinctive character based on good design principles;
Clause 5.3 of TPS 4 covers the special application of the Residential Design Codes of Western Australia (2008) (Codes) and cl 5.3.1 deals specifically with Special Residential Zones as follows:
(a) Where a development envelope has been identified on an approved development plan, no building (including an outbuilding) may be erected outside the envelope, unless otherwise approved by the City.
(b) Buildings in the Special Residential zone are to accord with the requirements of R5 under the Residential Design Codes unless otherwise required by the Scheme in accordance with part (c) below or provided for under an adopted Structure Plan.
(c) Except where an approved development envelope is located closer to the boundary, the following setbacks are to apply by way of variations to the Residential Design Codes, unless otherwise approved by the City -
i.Where lots have an effective width of between 25m and 40m, side setbacks are to be a minimum of 3m.
ii.Where lots have an effective width of more than 40m, side setbacks are to be a minimum of 6m.
iii.Where lots have an effective depth of more than 50m, rear setbacks are to be a minimum of 15m.
Clause 5.9 of TPS 4 covers the use of reflective materials:
5.9.1 No building structure, [sic] shall be constructed east of Albany Highway from the City's northern boundary to its junction with the South Western Highway and thereafter east of the South Western Highway, with any external sheeted surface of zincalume, metallic or white coloured finish, without the City's approval.
5.9.2 The City may approve the development of buildings or structures involving a roof or walls with any external sheeted surface of zincalume, metallic or white coloured finish, with or without conditions, or may refuse to approve the application, having due regard to:
(a) the potential impact on the amenity of the locality; and
(b) the objectives and relevant performance criteria in the Residential Design Codes.
Clause 6A.6.1:
Where development envelopes are, pursuant to this Scheme, required to be depicted on a Detailed Area Plan, Structure Plan or Subdivision Guide Plan, all buildings shall be located within the development envelopes shown on those Plans. For the purposes of this clause 'buildings' shall include dwellings, outbuildings, effluent disposal systems, stables and any other building or structure similar to the foregoing.
Clause 8.1 of TPS 4 requires all development on land zoned or reserved under the Scheme to be approved by the City.
Clause 8.4.1 states:
The City may grant planning approval to a use or development already commenced or carried out regardless of when it was commenced or carried out, if the development conforms to the provisions of the Scheme.
Clause 10.2 of TPS 4 includes the following matters which the City will have regard to:
a) The aims, objectives and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
b) The requirements of orderly and proper planning …
…
f) Any Local Planning Policy adopted by the City under clause 2.4 ...
…
i)The compatibility of a use or development within its setting, taking into consideration any Special Control Area;
j) Any social issues that have an effect on the amenity of the locality;
…
l) The likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
n) The preservation of the amenity of the locality;
o) The relationship of the proposal 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 proposal;
…
v) Whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
...
(zb) Any other planning considerations the City considers relevant.
Clause 11.4.1 states:
A person must not -
a)contravene or fail to comply with the provision of the Scheme or with a notice issued under the Scheme;
b)use any land or commence or continue to carry out any development within the Scheme area –
i.otherwise than in accordance with the Scheme;
ii.unless all approvals required by the Scheme have been granted and issued;
iii.otherwise than in accordance with any conditions imposed upon the grant and the issue of any approval required by the Scheme; and
iv.otherwise than in accordance with any standards laid down and any requirements prescribed by the Scheme or determined by the City under the Scheme with respect to that building or that use.
Proposed development
The proposed development is the installation of a transportable building, rectangular in shape measuring approximately 8.4 metres by 6 metres and is approximately 50 square metres in floor area. The building is already installed in the north-east corner of the subject site, approximately 20 metres from the main dwelling.
The transportable building is, according to the applicant, unoccupied but intended to be used as ancillary accommodation for Mr Ritchie, Mrs Larratt's father. It contains an open‑plan kitchen/dining/living area, two bedrooms and a bathroom with the entry off a small verandah.
The applicant has provided very limited information regarding the building's construction, materials and location on the site. Notwithstanding this, the installed building appears to be of lightweight construction with a timber verandah, a low pitched gable sheet metal roof, aluminium windows and an unspecified light coloured cladding material to the external walls.
Site view
The Tribunal had the benefit of a site visit on 10 February 2009. The Tribunal viewed the subject building as installed on site; walked around the perimeter of the subject site, and viewed the subject building from the public open space adjacent to the subject site.
Background
Complaints were received by the respondent in regard to the installation of a transportable building on the subject site. Council officers subsequently visited the site on Monday, 26 May 2008. The officers advised the applicant that work should be stopped immediately, as neither a planning consent, nor a building licence had been issued.
The applicant applied for planning approval to use the installed building for ancillary accommodation. This application was considered at a Council meeting on 23 June 2008. It was decided by the Council to refuse the application for ancillary accommodation and to issue a direction notice requiring the removal of the installed building.
Council's decision
The applicant submitted a retrospective application for planning approval of ancillary accommodation and development envelope modification on 30 May 2008.
The City considered the application and issued a refusal dated 26 June 2008 with the following reasons:
1. The materials used and overall 'industrial' appearance of the proposed ancillary accommodation is not in keeping with the design of the existing residence on the lot and will have an adverse impact on the amenity of the Churchman Brook Estate and surrounding areas.
2. The proposal is inconsistent with the City's Planning Policy PLN 3.6 Ancillary Accommodation. - Control of Additional Accommodation.
Direction notice
The City also issued a direction notice under s 214 of the PD Act which required the applicant to remove the dwelling and restore the property to its original condition within 65 days.
Whether the proposed development satisfies the Codes or PLN 3.6
Clause 7.1 of the Codes covers special purpose dwellings requirements and has as its objective:
To ensure that dwellings for the aged and for people with special needs can be provided within normal residential areas.
Clause 7.1.1 covers ancillary accommodation specifically as follows:
Acceptable Development
A1
An additional dwelling or independent accommodation associated with a single house and on the same lot where:
i.the sole occupant or occupants are members of the family of the occupiers of the main dwelling;
ii.the lot is not less than 450 square metres in area;
iii.the open space requirements of table 1 are met;
iv.there is a maximum floor area of 60 square metres; and
v.one additional car space is provided.
Performance Criteria
P1 Ancillary dwellings that accommodate the needs of large or extended families without compromising the amenity of adjoining properties.
The proposed development complies with the acceptable development requirements of the Codes for ancillary accommodation but, as illustrated below, it is argued that it will compromise the amenity of adjoining and surrounding properties and therefore not satisfy the performance criteria.
The respondent also has a local planning policy City of Armadale PLN 3.6 Ancillary Accommodation – Control of Additional Accommodation (PLN 3.6), for the consideration of ancillary accommodation. The objective of this policy is 'To facilitate the accommodation of the extended family on the same property without detriment to residential amenity'.
The proposed development complies with this policy in regard to size and number of bedrooms and by the fact that additional services such as laundry facilities will be provided by the existing residence.
The non-compliance occurs, according to Mr Glen Windass, a town planner employed by the City, in that there is no substantial connection to the existing residence and that the proposed development is located more than 6 metres from the existing dwelling.
The policy also has a section regarding application, which states:
This policy applies to proposals to develop ancillary accommodation in zones where the provisions of the Residential Design Codes do not apply.
In this case, the Codes do apply. Having said this, the policy can be viewed as giving weight to the respondent's desire to approve ancillary accommodation which cannot be used for alternative purposes.
Notwithstanding the above, compliance with the acceptable standards of cl 7.1.1 of the Codes in this case is not sufficient to warrant planning approval. The key issue in this review is whether the proposed development complies with TPS 4 and this will be explored in detail below.
Whether the proposed development complies with TPS 4
The subject site is zoned 'Special Residential' under TPS 4. The zoning table in Part 4 of TPS 4 illustrates the uses permitted in different zones. Ancillary accommodation is classified as a 'D' use in areas zoned 'Special Residential'. A 'D' classification means that the use is not permitted unless the City has exercised its discretion by granting planning approval. Note 3 in cl 4.3 of TPS 4 says that:
In considering a 'D' or 'A' use, the City will have regard to the matters set out in clause 10.2 and may refuse or impose conditions on any such use.
The relevant matters of cl 10.2 of TPS 4 are listed above and include particularly: the aims and objectives of the scheme; orderly and proper planning; any local planning policy; preservation of the amenity of the locality; the likely effect of the height, bulk, scale, orientation and appearance of the proposal.
With regard to the aims and objectives of the scheme, cl 4.2.2 of TPS 4 lists the specific zone objectives for Special Residential as follows:
a)To provide for low density residential development in a rural setting, in which natural environmental values are conserved as far as possible for the enjoyment of residents as well as the maintenance of ecological and landscape values.
b)To ensure development is sited and designed to achieve an integrated and harmonious character within each of the estates.
In this case, the proposed development is a transportable building already installed on the subject site. The Tribunal has had the benefit of a view of the site and has been provided with a number of photographs illustrating the installed building as well as the existing buildings on the subject site and in the surrounding area.
The installed building is very different to the existing approved dwelling on the subject site, particularly with regard to materials and built form. The existing approved dwelling is face brick and tile construction while the proposed development is of lightweight construction with a low pitched gable sheet metal roof and a light coloured wall cladding.
Mrs Larratt stated, during the hearing when questioned by Mr Matthew Handcock, the respondent's representative, that it was different to the other houses in the area and that they would like a brick building but that was an unaffordable option.
In her witness statement, Mrs Larratt responds to the issues of appearance and location by suggesting that the building could be well screened if sited in its current location and that to move it closer to the existing approved dwelling would cause her family financial hardship due to the extra works involved which would include new septic tanks, leach drains, earthworks and possible removal of trees. She is also of the opinion that the proposed development is not visible from the properties of objecting neighbours and therefore does not cause detriment or have any adverse impact.
It is the opinion of Mr Windass that the proposed development does not satisfy the Scheme requirements in regard to the use of reflective materials generally and does not satisfy the specific 'Special Residential' zone objectives of ensuring integrated and harmonious development.
Mr Windass also expressed concern regarding the location of the proposed development. It is currently sited outside the approved development envelope for the subject site and the City has refused the variation of the development envelope.
When questioned about the location of the proposed development, Mrs Larratt said she did not know it was outside the development envelope as 'that was her husband's area'.
In fact, the applicant has previously applied for and received approval for a variation to the development envelope of the subject site in order to construct a large shed. The shed has been constructed but according to Mr Windass, is also located outside of the approved development envelope.
The City's Planning Policy PLN 2.1 Establishment or Variation of Development Envelope Locations (PLN 2.1) states its objectives as:
To locate development envelopes having regard to:
·Minimise clearing of land vegetation and protect significant vegetation and trees;
·Minimisation of visual impact of buildings from adjoining roads or public areas;
·Avoidance of steep slopes;
·Access requirements and approved bush fire protection measures.
It was Mr Windass' evidence that the location of the proposed development outside of the development envelope increases the overall visual impact of the buildings on the subject site and has an adverse impact on the adjoining properties, including the adjacent public open space.
The Tribunal agrees with Mr Windass and is of the view that the location of the proposed development does not satisfy the objectives of PLN 2.1, particularly with respect to minimising the visual impact of buildings from adjoining roads or public areas. In this case, the proposed development is clearly visible from adjoining properties including the adjoining public open space to the north.
The proposed building is relatively small, single storey and approximately 50 square metres in area and would not generally be considered intrusive with regard to height, bulk and scale. The issue in this case is that the materials used are not considered appropriate with respect to the existing dwelling on the subject site and with respect to other dwellings in the locality. The built form of the proposed building including the low pitched roof, reduced eaves overhang and lack of architectural detailing give further weight to the claim that the building is in conflict with the expected character of the locality.
The Tribunal is in agreement with the respondent that the appearance of the proposed development is out of character with the existing dwelling and those that generally create the character of the locality.
With regard to the issue of the character of the locality, the subject site forms part of the Churchman Brook Estate which is a special residential estate with a semi-rural flavour. Mr Handcock provided evidence of a restrictive covenant over the title of the subject property which restricts the form of development on the property. It was Mrs Larratt's evidence that there is no restrictive covenant in place over the title of the applicant's property. On balance, it would appear that there is a restrictive covenant burden over the title of the subject property and probably over other properties in the estate.
The covenant includes restrictions on the installation of transportable residences, the use of reflective roof materials, the use of highly reflective cladding, and importantly, the erection of 'any structure or structures which do not match or complement the residence in respect of materials used, the design, external appearance, including colour and the quality of construction'.
It is not for the Tribunal to enforce a restrictive covenant; however, in this case the Tribunal is of the view that its existence forms part of the expectations of the local community and in particular the residents of the Churchman Brook Estate.
This review does not turn on the issue of the restrictive covenant, it merely adds emphasis to the community expectation that all development will be carried out to a certain quality of design and construction.
The Tribunal finds that the proposed development will have an adverse impact on the amenity of the locality which is further impacted by siting the proposed development outside the development envelope. This increases the visual impact of all the buildings on the subject site and erodes the low density semi-rural environment. The Tribunal therefore determines that the proposed development does not comply with TPS 4.
The Tribunal finds that, given the reasons above affirming the respondent's decision to refuse planning approval for the proposed development, the direction notice issued by the respondent requiring the removal of the transportable building from the subject site is also affirmed.
Conclusion
The Tribunal has determined that the proposed development will have an adverse impact on the amenity of the locality and does not comply with TPS 4. The application for review should therefore be dismissed and the decision by the respondent to refuse retrospective planning approval for ancillary accommodation and development envelope modification be affirmed. The respondent's decision to issue a direction notice requiring the applicant to remove the transportable building from the subject site is affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 23 June 2008 to refuse retrospective development approval for ancillary accommodation and development envelope modification at No 6 Trewarn Place, Bedfordale is affirmed.
3.The direction notice issued pursuant to s 214 of the Planning and Development Act 2005 (WA) dated 30 June 2008 is affirmed.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, SENIOR SESSIONAL MEMBER
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