Miles and Anor and Shire of Dandaragan

[2006] WASAT 167

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   MILES & ANOR and SHIRE OF DANDARAGAN [2006] WASAT 167

MEMBER:   MS J SMITHSON (SESSIONAL MEMBER)

HEARD:   20 MARCH 2006

DELIVERED          :   26 JUNE 2006

FILE NO/S:   DR 32 of 2006

BETWEEN:   ERNIE MILES

NARRELLE CASTLE
Applicant

AND

SHIRE OF DANDARAGAN
Respondent

Catchwords:

Town planning – Shed on residential property – Oversize shed – Application upheld

Legislation:

Shire of Dandaragan Town Planning Scheme No 6, cl 2.3.3
Planning and Development Act 2005 (WA)
Town Planning and Development Act 1928 (WA)

Residential Design Codes of Western Australia 2002, cl 2.6.2, cl 3.10.1

Result:

The application for review be upheld
The application is approved subject to conditions

Category:    B

Representation:

Counsel:

Applicant:     Mr Bellemore

Respondent:     Mr Mastrelembo

Solicitors:

Applicant:     As Agent

Respondent:     As Agent

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. These proceedings concerned an application for review of the refusal by the Shire of Dandaragan for a proposed shed at Lot 430 Dryandra Boulevard, Jurien Bay.

2. The application proposed the construction of a caravan storage shed at the rear of a residential property.  A 3.6 metre wall height was proposed with an overall height of 4 metres.

3. The grounds for refusal were that the shed did not comply with the Shire of Dandaragan's town planning scheme in that the height did not meet the acceptable development criteria of the Residential Design Codes of Western Australia 2002, or comply with Shire of Dandaragan's proposed "Outbuildings" policy.  Furthermore, the shed would be visible from the street in a newly developing residential estate and could therefore adversely impact on the streetscape and the visual amenity of adjoining properties.  The Shire of Dandaragan was also concerned with the proportions of the shed relative to the house under construction on the property and that approval could set a precedent for further applications.

4. The State Administrative Tribunal found that the application should be approved.  There was precedent for similar sheds at the same or greater height in the area and in other residential areas of the Shire of Dandaragan, the Shire of Dandaragan's proposed policy had yet to be advertised for comment and in any event would allow the shed with only a 0.3 metre height reduction, and the adjoining neighbours had given their agreement to the development as had the developers of the estate.  Furthermore, the height sought was not considered to be so significant as to have an adverse visual impact on the streetscape or on neighbours and could therefore be supported under the performance criteria of the Residential Design Codes of Western Australia 2002.

5. The application for review was upheld.

Introduction

1. The owners of the property are Mr Ernie Miles and Ms Narrelle Castle (applicants).  The application was lodged by Swan Aussie Sheds on behalf of the applicants and Swan Aussie Sheds presented the only evidence to the Tribunal on behalf of the applicants.  The respondent is the Shire of Dandaragan (the Shire).

2. In December 2005, an application was submitted to the Shire to construct a shed for caravan storage with a wall height of 3.6 metres.  The applicants advised that a minimum clearance under the roller door of 3.1 metres was required to store the caravan necessitating a wall height of 3.6 metres.

3. The shed was 10 metres by 6 metres totalling 60 square metres in area and was proposed to be of colorbond construction with "Classic Cream" walls and "Red" roof cladding.  The development was classified by the Shire to be an outbuilding as it was detached from the main dwelling being located in the western (rear) corner of the lot.

4. On 19 January 2006, the application was refused by the Shire for non‑compliance with the Shire of Dandaragan Town Planning Scheme No 6 (TPS 6).  Specifically, TPS 6 requires all residential development to comply with the Residential Design Codes of Western Australia 2002 (the Codes) which specify "acceptable development" to include outbuildings that do not exceed a wall height of 2.4 metres.  The Shire acknowledged however, that this height limit in a coastal environment "is quite impractical to accommodate the need to store boats and large vehicles" and, accordingly, the Shire was in the process of seeking comments on a proposed "Outbuildings" policy which would permit a maximum wall height of 3.3 metres within a total height of 4.2 metres.

The site

1. The subject site is referred to as Lot 430 Dryandra Boulevard, Jurien Bay (the site).  It is located in a residential estate known as "Beachridge", which is being developed by Ardross Estates, and is adjoined and surrounded by new low density residential housing.

2. The site is 816 square metres in area.  A single‑storey residential dwelling is currently under construction.

Planning context

1. The subject site is zoned "Residential R12.5" under TPS 6.  Clause 2.3.3 of TPS 6 requires that development for residential purposes is to comply with the Codes.

2. Other than in terms of exceeding the wall height criterion, the proposed development complies with the acceptable development criteria specified in cl 3.10.1 "Outbuildings" under the "Incidental Development Requirements" of the Codes.

3. The objective for "Incidental Development" is:

   "To ensure that (a) outbuildings and fixtures attached to buildings do not detract from the streetscape, or the amenity of the development or that of adjoining residents; and (b) adequate provision is made for incidental facilities serving residents' needs".

4. Outbuildings that do not detract from the streetscape or the visual amenity of residents of neighbouring properties are deemed to meet the performance criteria of the Codes.

5. Subsequent to receipt of, but prior to determining, the subject application, the Shire prepared a draft policy titled "Proposed Policy Relating to Outbuildings" (proposed policy).  The aim was to provide direction and guidance to the Shire on the area and height of outbuildings that would be permitted in the residential areas of the Shire and did not meet the acceptable development criteria of the Codes.  One of the objectives of the proposed policy was to provide some flexibility in the requirements for outbuildings by setting out relevant criteria pending the proposed policy's adoption following public consultation under TPS 6.

6. The proposed policy was made pursuant to cl 2.6.2 of the Codes and was to apply, inter alia, where an outbuilding had a wall height greater that 2.4 metres in which case the development did not comply with the acceptable development criteria and must meet the performance criteria of the Codes in order to be granted planning approval.

7. Under the proposed policy, an outbuilding could be approved under delegation if, for a colorbond clad shed, the wall height was a maximum of 3.3 metres and there was written approval from all adjoining landowners.  Any proposed outbuilding that did not meet these requirements "shall be referred to Council for determination, following consultation with all landowners adjoining the subject property".  In determining such applications, the Shire was to "have regard to streetscape, adjoining property owner's comments, and the affect on the visual amenity of the adjacent area and unusual circumstances due to restrictive individual site conditions [sic]".

Overview of Issues

1. Guidelines for the height of sheds are provided through the Codes with the acceptable development criteria specifying a wall height of 2.4 metres, but no height restriction specified under the performance criteria.

2. The Shire acknowledged that a 2.4 metre wall height limit was inappropriate for country coastal communities where owners often required sheds to store caravans and boats which could not be accommodated within this height restriction.

3. Evidence was provided to the Tribunal that the Shire had approved a number of sheds in residential areas with wall heights in excess of 3.3 metres over the past four years.  The number of applications seeking sheds in excess of 3.3 metres led to the Shire deciding to develop a policy to provide some guidance on an acceptable height in excess of 2.4 metres.

4. The Shire indicated that consultation had occurred with a number of coastal councils in arriving at the heights in the proposed policy.  The applicants also provided examples of coastal Councils where heights in excess of 3.3 metres were permitted.  No consistent height was applied across councils.

5. Swan Aussie Sheds, on behalf of the applicants, argued that:

   1)prior to the proposed policy being developed, they had gained approval for, and constructed, numerous sheds in the Shire in excess of 3.3 metres including  in the Beachridge Estate;

   2)they could meet the Shire's overall height requirement of 4.2 metres but not the wall height of 3.3 metres;

   3)a "display shed" of the height proposed by the applicants, had been built with the approval of the Shire to demonstrate the nature of their sheds to prospective purchasers;

   4)Swan Aussie Sheds were the main supplier of sheds in the Shire and they would be strongly objecting to the proposed policy when it was advertised, as the proposed height would be insufficient to accommodate the size of sheds required in Jurien Bay;

   5)their sheds would not be out of character with the streetscape and the 0.3 metre height increase sought beyond what was permitted in the proposed policy would have an insignificant impact; and

   6)reduction of the height of the shed by 0.3 metres to meet the Shire's proposed policy would result in the shed not being able to accommodate the caravan it was proposed to house.

6. The Shire agreed that a wall height of 2.4 metres was not appropriate for the Shire's residential areas, however, there had to be some guidance provided otherwise unlimited height could be sought and an undesirable precedent created.  The Shire was concerned that, whilst at the rear of the property, the shed would be visible from the street and have a wall height higher than the single‑storey residential dwelling under construction on the property.  This could have an unacceptable visual impact on the street in a newly developing residential estate and on the neighbours.  The proposed policy height of up to 3.3 metres was already generous relative to the 2.4 metres deemed to be "acceptable" in the Codes.

7. All adjoining landowners had given their approval to the proposed shed.  Under the proposed policy, the Shire could accordingly approve the application with a wall height above 3.3 metres if the impact was considered acceptable.

8. Ardross Estates, as the developers of the estate in which the proposed shed was to be erected, submitted a letter to the Shire in regard to the compliance of the proposed shed with the Residential Design Guidelines and covenants for the estate.  They advised that "plans for the shed comply with the Guidelines and Covenants, subject to the colour of the shed complementing the colour of the main residence".

9. Draft conditions proposed by the respondent required the shed to be constructed of matching material to the existing house (that is, brick external finish and colorbond roof sheeting to match).  This was objected to by the applicants as it would add a significant additional cost relative to colorbond cladding and had not been required for other sheds approved in the area.

Findings and conclusion

1. For the reasons summarised below, the Tribunal determines that the application for review be upheld:

   1)The shed, whilst being higher than the residence under construction on the property, would be at the rear of the site and partially screened from the street by the residence.

   2)The Shire's concerns of visual impact were not shared by either the developer of the estate or the neighbours.  Other similar sized and higher sheds in residential areas are not uncommon in the residential areas of Jurien Bay.

   3)The proposed policy by which the application was assessed has not been publicly advertised or formally adopted, and could well be revised following advertising should Swan Aussie Sheds and other shed suppliers lodge objections.  These were foreshadowed on the basis that the heights proposed were insufficient to meet the storage requirements of coastal communities.  In any event, developments which exceed the height can still be considered by the Shire on their merits.

   4)Reducing the wall height by 0.3 metres in this instance would be unlikely to have a significant impact on visual amenity considering the shed would still be less than the overall height the Shire could approve.  It would, however, impact on the capacity of the shed to service the storage function for which it is proposed.

   5)Requiring the shed to be constructed of brick rather than colorbond is not reasonable when viewing similar sheds approved elsewhere in the Shire, given that the Residential Design Guidelines and covenants adopted for the estate do not require it, and that the estate developer requires only that the colour match the residence.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is upheld.

   2.The application is approved subject to the following condition:

   i)The outbuilding to have a wall height not exceeding 3.6 metres and a maximum overall height not exceeding 4.2 metres.

   I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MS J SMITHSON, SESSIONAL MEMBER