MAGUIRE and CITY OF BUNBURY
[2009] WASAT 48
•20 MARCH 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MAGUIRE and CITY OF BUNBURY [2009] WASAT 48
MEMBER: MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD: 27 JANUARY 2009
DELIVERED : 20 MARCH 2009
FILE NO/S: DR 433 of 2008
BETWEEN: DESMOND MICHAEL MAGUIRE
Applicant
AND
CITY OF BUNBURY
Respondent
Catchwords:
Town planning - Outbuilding - Garage/workshop - Residential Design Codes of Western Australia (2008) - Orderly and proper planning - Amenity of the area - Height, bulk, scale and overall appearance
Legislation:
City of Bunbury Town Planning Scheme No 7, cl 5.2.2, cl 5.9.1.1, cl 10.2, cl 10.2.1
Residential Design Codes of Western Australia (2008), cl 6.10.1 A1
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr H Ravening (Acting as Agent)
Respondent: Mr G Fitzgerald (Acting as Agent)
Solicitors:
Applicant: Northlight Building Design
Respondent: City of Bunbury
Case(s) referred to in decision(s):
Boyd and Town of Vincent [2007] WASAT 35
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the City of Bunbury to refuse an application for 'additions and alterations to existing house at 16 (Lot 28) Park Street, Bunbury'.
The respondent contended that the application be defined as 'outbuilding' and subject to the provisions of the Residential Design Codes of Western Australia (2008) for such. The applicant contended that the appropriate definition is a garage/workshop and that it does comply with the provisions of the Residential Design Codes of Western Australia (2008) for this type of structure.
The Tribunal determined that there were a range of matters to be considered in this application, namely, the visual impact, the compliance with relevant legislation, including the zoning of the area, and the proposed categorisation of the building.
The Tribunal considered that the scale and bulk of the proposed development was inconsistent with the zoning of the area and did not contribute to orderly and proper planning.
The Tribunal accepted that the proposed development is in all intents and purpose an 'outbuilding' and not an addition to a single house. The proposal exceeds the intent of the Residential Design Codes of Western Australia (2008) with respect to outbuildings.
The application for review is dismissed.
Introduction
This is an application for the review of a decision of the respondent to refuse an application for additions and alterations to the existing house at No 16 (Lot 28) Park Street, Bunbury (subject land).
The respondent refused the application on 16 October 2008 for the following reasons:
1.The proposed outbuilding would not be in accordance with Section 6.10.1, A1, (iii) of the Residential Codes 2008, in that collectively it would exceed 60 [square metres] in area.
2.The proposed outbuilding would be contrary to Section 6.10.1, A1, (IV) by virtue of the wall height 2.4 metres.
3.The proposed outbuilding would be contrary to Section 6.10.1, A1, (v) of the Residential Design Codes 2008 in that the ridge height would exceed 4.2 metres.
4.The proposed development would not be in accordance with Section 10.2.1, (b) of Town Planning Scheme No.7, in that it would not meet the requirements of orderly and proper planning and would create an undesirable president [sic] in a residential area.
5.The proposal would be contrary to Section 10.2.1, (c) the approved Statement of Planning Policy (RCodes).
6.The compatibility of the use and development with its setting would be contrary to the provision of Section 10.2.1, (i) of Town Planning Scheme No.7.
7.The proposed development would undermine the preservation of the amenity of the locality and as such would be contrary to the provisions of Section 10.2.1, (n) of Town Planning Scheme No.7.
8.The relationship of the proposal to adjoining land by virtue of the height, bulk, scale and overall appearance would be contrary to Section 10.2.1, (o) of Town Planning Scheme No.7.
Subject land
The subject land has an area of 852 square metres. The subject land is rectangular in shape, with a frontage of 20.12 metres and a depth of 42.65 metres.
The land is zoned 'Residential' in the City of Bunbury Town Planning Scheme No 7 (TPS 7) with a density designation of R15.
The land has a modest single storey early midTwentieth Century timber house. The external walls have a weatherboard skirt to the level of the window sills, with flat compressed fibre panels above. The house has a tiled roof, plain brick chimney, flat window awning to the projecting front room with horizontal proportions to the window panes across the front of the house.
Locality
The surrounding area is generally the 'Stirling Street Heritage Precinct' and Park Street is a culdesac. Lot sizes and development in the area are mixed, while being predominantly single storey residential with many of the original houses evident.
The City have advised that 'the existing houses immediately adjacent to the subject land and directly north have an historic significance and are listed on the municipal inventory'.
Application
The application is for a building to be located at the rear of the existing house on the subject land, linked by a structure described as a 'covered entrance area' on plans submitted by the applicant subsequent to the initial proposal, as a clarifying document.
The development is described by the applicant as 'Proposed Additions', with the proposed building described as 'New Garage/Workshop' and the link between this building and the existing house as 'Covered Area'.
The proposed building is 150 square metres and the link to the existing residence is 26 square metres. The walls are to be custom orb with Colorbond finish.
The pitch of the building is 4.413 metres above existing ground, which includes a 300 millimetre sandfill, giving a building height of 4.113 metres. This height is lower than the existing house, and from Park Street, (the south elevation) approximately half the proposed building would be visible.
The wall heights from the fill are 3.392 metres, and the building is oriented northsouth.
Access to the building is from a large sliding door on the south side aligned to the driveway, and from an access door and large double doors on the east side of the building.
It is proposed to complement the weatherboard skirt of the existing residence with horizontal metal sheeting to dado height on the proposed building.
The proposed building will be located on a 1 metre setback from the western boundary and 1 metre from the northern boundary at the northwest corner. The setback from the northern boundary increases across the subject land due to the boundary configuration.
The proposed building is 4.697 metres from the rear of the existing residence, and that link, variously described as a 'covered entrance area, outdoor area, and covered area', is to have a screen wall with high level louvre panels on the west side and be open on the east side. The existing sliding door at the rear of the house will be relocated to provide access from the house to the covered area. There is no access at the northern end of the covered area to the proposed garage/workshop, access is on the eastern side.
Respondent's decision
On 16 December 2008 the City of Bunbury (City) refused to grant planning approval for the following reasons:
1.The proposed outbuilding would not be in accordance with Section 6.10.1, A1, (iii) of the Residential Codes 2008, in that collectively it would exceed 60sqm in area.
2.The proposed outbuilding would be contrary to Section 6.10.1, A1, (IV) by virtue of the wall height 2.4 metres.
3.The proposed outbuilding would be contrary to Section 6.10.1, A1, (v) of the Residential Design Codes 2008 in that the ridge height would exceed 4.2 metres.
4.The proposed development would not be in accordance with Section 10.2.1, (b) of Town Planning Scheme No.7, in that it would not meet the requirements of orderly and proper planning and would create an undesirable president [sic] in a residential area.
5.The proposal would be contrary to Section 10.2.1, (c) the approved Statement of Planning Policy (RCodes).
6.The compatibility of the use and development with its setting would be contrary to the provision of Section 10.2.1, (i) of Town Planning Scheme No.7.
7.The proposed development would undermine the preservation of the amenity of the locality and as such would be contrary to the provisions of Section 10.2.1, (n) of Town Planning Scheme No.7.
8.The relationship of the proposal to adjoining land by virtue of the height, bulk, scale and overall appearance would be contrary to Section 10.2.1, (o) of Town Planning Scheme No.7.
Statutory and policy provisions
The land is zoned 'Residential' with a density designation of R15 in TPS 7.
Clause 5.9.1.1 of TPS 7 provides the following objectives for the residential zone:
(a)To promote and safeguard the health, safety, convenience, general welfare and the amenities of residential areas and their residents;
(b)To provide sufficient zoned land to meet the needs of the projected population;
(c)To safeguard and promote the heritage architectural style of buildings within the Scheme Area;
(d)To provide for a wide range of housing types and architectural styles and therefore, housing choice and lifestyle opportunities;
(e)To provide urban consolidation in suitable locations;
(f)To encourage residential development that will achieve efficient use of existing physical and social infrastructure, is economically serviced and affordable;
(g)To require subdivision to have regard to any structure plan adopted by the local government; [and]
(h)To provide for homebased employment where such use does not cause injury to, or prejudicially affect, the amenity of the locality within which it is situated.
Clause 10.2 of TPS 7 'Matters to be considered by Local Government' in dealing with applications, and cl 10.2.1 and the following sections are considered relevant:
…
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
…
(i)the compatibility of a use or development with its setting;
…
(n)the preservation of the amenity of the locality; [and]
(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;
…
Clause 5.2 of TPS 7 links the Residential Design Codes of Western Australia (Codes 2008) as amended, and in particular states at cl 5.2.2:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes.
The Codes 2008 provide definitions and standards for buildings. The Codes 2008 define a 'garage' as:
Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles and attached to the dwelling.
An outbuilding is defined in the Codes 2008 as:
An enclosed nonhabitable structure that is detached from any dwelling.
Clause 6.10.1 A1 of the Codes 2008 sets out the standards for outbuildings. The acceptable development provisions for outbuildings are that they:
iare not attached to a dwelling;
iiare nonhabitable;
iiicollectively do not exceed 60 sq m in area or 10 per cent in aggregate of the site area, whichever is the lesser;
ivdo not exceed a wall height of 2.4 m;
vdo not exceed ridge height of 4.2 m;
viare not within the primary street setback area;
viido not reduce the amount of open space required in table 1; and
viiicomply with the siting and design requirements for the dwelling, but do not need to meet rear setback requirements of table 1.
The issues
The respondent listed the issues for consideration by the Tribunal as:
(i)Whether the proposed outbuilding will detract from the established level of visual amenity of the area and adversely affect the amenity of residents and/or neighbouring properties.
(ii)Whether the scale and bulk of the proposed outbuilding is inconsistent with Clause 6.10.1 (Outbuildings) of the Residential Design Codes (R-Codes 2008) in consideration of the Acceptable Development provisions and the Performance Criteria.
(iii)As to whether the City of Bunbury was correct in terms of refusing to Grant Planning Approval for the proposed development respect of the RCodes and Town Planning Scheme No.7.
The applicant considers that issues (i) and (ii) above are based on an incorrect classification of the proposed building as an 'outbuilding' rather than an 'addition' or 'garage/workshop' and that the only issue is that listed at (iii) above.
The Tribunal will consider the three issues as the classification to the building is a relevant consideration.
Whether the proposed outbuilding will detract from the established level of visual amenity of the area and adversely affect the amenity of residents and/or neighbouring properties
The proposed building is 150 square metres and will be larger than the existing residence, which is 121 square metres. The pitch height above the building slab is 4.113 metres, with wall heights of 3.392 metres.
The applicant, represented by Mr Hugh Ravening from Northlight Building Design, submitted on this issue that:
•The district in which the proposal sits is comprised largely of older homes which are both framed off the ground and of much higher ceiling heights than contemporary housing stock. This means that higher outbuildings are not at odds with the scale [of] current development.
…
Mr Ravening considers that the setbacks, the orientation, the placement of rainwater tanks and the existing planting contribute to the building being:
… not at odds with current development and given the approval of the neighbours which was submitted with the application, we feel the proposal can be safely approved.
Mr Ravening submitted a 'photographic survey' of adjacent and nearby properties to 'indicate the development characteristics and prevailing wall height and setbacks in the locality'. The submission from Mr Ravening was explained in more detail at a view of the site by the Tribunal.
It is common ground that there are several outbuildings in the nearby area and some appear to have ridge heights of up to 4 metres and wall heights of 3 metres.
Mr Gary Fitzgerald, the Manager of Development Services at the City and an experienced officer in both building and town planning matters, acknowledged the five existing outbuildings in the area, however noted that:
None of these outbuildings are of comparable size to those proposed by the applicant; the largest of these is 75 [square metres].
Mr Fitzgerald considered that the proposed building would have a significant impact on the property to the west, albeit that the current owner had confirmed no objection, particularly if more intensive redevelopment of the subject land occurred. He concluded that the size and bulk of the building was out of character with both the development in the area and the relationship to the existing residence.
The Tribunal supports the view of the respondent on this issue and considers that the proposed building by its size, bulk and positioning on the subject land would detract from the established level of visual amenity of the area and adversely affect the amenity of residents and/or neighbouring properties. In this regard, the proposal is contrary to orderly and proper planning.
The proposed building would not be in accordance with the Codes 2008 as:
•collectively it would exceed 60 square metres in area;
•would exceed a wall height of 2.4 metres; and
•would exceed a ridge height of 4.2 metres.
The performance criterion (P1) is:
Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
The Tribunal has considered this aspect at [39] and found that the building would not meet the performance criteria.
The applicant contends that the proposed building is not an 'Outbuilding' and, as a consequence, an assessment under this category is incorrect.
Mr Ravening, for the applicant, submitted that the proposal is an 'addition' to the existing residence due to:
1A meaningful connection between the existing and proposed being provided, delivering a functional connection, [and]
2The roofed link provides a connection between the new and existing buildings and brings it into the definition of 'addition' by the RCodes,
…
The respondent considered that the categorisation of the building as an 'Outbuilding' was appropriate and cited a previous decision of the State Administrative Tribunal, Boyd and Town of Vincent [2007] WASAT 35 (Boyd). At [19] Senior Sessional Member Lloyd Graham considered that the principal planning issues were:
(a)Should the proposal be classified as an 'outbuilding' or an 'addition' to an existing home?
(b)Would the development set an undesirable precedent?
(c)Would the proposed development be consistent with orderly and proper planning and preserve the amenity of the locality?
The particular circumstances of Boyd are different to this review in several aspects, however the significance of a link between the existing house and the proposed building is common.
In Boyd the link is a 17 metre covered walkway, whereas in the review it is a 4.5 metre 'covered outdoor area'.
The 'covered outdoor area' is enclosed on three sides, and roofed, and while it connects to a proposed new door into the existing residence, meets a blank wall at the 'garage/outbuilding/workshop'.
This Tribunal agrees with the respondent that the proposed development is still an 'outbuilding', and it does not comply with the Acceptable Development Provisions and Performance Criteria of the Codes 2008.
As to whether the City of Bunbury was correct in terms of refusing to grant planning approval for the proposed development in respect of the Codes 2008 and TPS 7
The Tribunal has determined at [39] and at [49] that the matters of both TPS 7 and the Codes 2008 have been appropriately considered by the respondent.
For the foregoing reasons, the application for review is dismissed and consideration of the conditions of approval is not relevant.
Order
1.The application for review is dismissed and therefore the decision of the respondent is affirmed.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR B HUNT, SENIOR SESSIONAL MEMBER
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