MOIR and SHIRE OF DERBY/WEST KIMBERLEY - [2012] WASAT 124

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MOIR and SHIRE OF DERBY/WEST KIMBERLEY [2012] WASAT 124

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 20 FEBRUARY AND 21 FEBRUARY 2012

DELIVERED : 21 FEBRUARY 2012

PUBLISHED : 20 JUNE 2012

FILE NO/S: DR 386 of 2011

BETWEEN: DAVID MOIR
TRACY MOIR
Applicants
AND
SHIRE OF DERBY/WEST KIMBERLEY
Respondent

Catchwords:

Town planning Development Residential Planning Codes Performance criteria Acceptable development criteria Outbuilding Carport Building setbacks Amenity Privacy protection Wall height Screening from overlooking from neighbour's balcony Visual impact of proposed outbuilding on amenity of neighbours Front building line

Legislation:

Planning and Development Act 2005 (WA)
Shire of Derby/West Kimberley Town Planning Scheme No 5, cl 4.1.3, cl 4.10.1, cl 7.5
Residential Planning Codes of Western Australia, cl 6.10.1 A1, cl 6.10.1 A1(iv), cl 6.10.1(v), cl 6.10.1 P1

Result:

Application for review allowed
Decision of respondent to impose condition (i) set aside

Category: B

Representation:

Counsel:

Applicants: Mr E Samec (Acting as Agent)
Respondent: Mr N Myers (Acting as Agent)

Solicitors:

Applicants: Samec Planning
Respondent: Shire of Derby/West Kimberley

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

Iemma and Roebourne [2006] WASAT 116
Ness and Port Hedland [2010] WASAT 151
Richardson and Serpentine Jarrahdale [2007] WASAT 73
Stockdale and Mundaring [2006] WASAT 356

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The following are reasons for the decision given orally at the hearing and, with one exception, edited in minor respects to aid clarity. The exception is the inclusion of the statement of agreed facts which was referred to in the oral reasons.
This matter involved an application for review of condition i) of an approval by the Shire of Derby/West Kimberley for a building (outbuilding and attached carport) at Lot 42 Howell Street, Derby. Condition i) required the building to be located with a minimum setback from the rear boundary of the lot of not less than 9.6 metres.
In undertaking this review, the Tribunal examined the respective arguments of the parties, the relevant legislative and policy provisions and the particular circumstances relating to residential building heights in Derby.
The Tribunal found that the substance of the review related to the competing amenity requirements of Mr David Moir and Mrs Tracey Moir against those of their adjoining neighbour, whereby if the proposed building was constructed 4.6 metres from the rear boundary of the subject site as proposed, the amenity requirements of the Moirs' for some privacy at the rear of their property would be satisfied. However, from the neighbour's perspective, the height and bulk of the building in that location would give rise to visual intrusion and loss of amenity. The Shire of Derby/West Kimberley supported the adjoining neighbour's argument by imposing condition i), which, in effect, required the building to be moved a further 5 metres away from the rear boundary towards the front boundary of the lot.
The Tribunal determined that the proposed increase in the rear setback as required by condition i) was unnecessary and would significantly reduce the Moir's privacy amenity for a marginal increase in the neighbour's visual amenity. Also, that it would have an unacceptable adverse impact on streetscape amenity by locating the carport portion of the proposed development forward of the front building line.
The application for review was allowed and the decision of the Shire of Derby/West Kimberley to impose condition i) was set aside.

Introduction

Mr Ernest Samec, an expert planner, appeared as a witness for Mr David Moir and Mrs Tracey Moir (applicants), and Mr Noel Myers, an expert planner, appeared as a witness for the Shire of Derby/West Kimberley (Council or respondent). As ordered by the Tribunal, the parties submitted a joint statement of agreed issues and facts, including a planning framework.
For the purposes of clarity in these written reasons, the agreed facts are added below under the heading 'Agreed facts'.
At this point, it is appropriate to record that before the hearing commenced, the Tribunal had the benefit of viewing the site and the immediate locality in the company of the parties.

Agreed facts

The joint statement of agreed issues and facts was dated 25 January 2012 and filed on 7 February 2012. The agreed issue was discussed in the oral reasons and, as para 1 of the agreed statement, it is excluded from this inserted section. The agreed facts, unedited, are reproduced below.
Abbreviations
We will use the following abbreviations in this joint statement.
Lot 42 Howell St, being the land the subject to of this review:      Lot 42
Residential Design Codes:        R Codes
Shire of Derby/West Kimberley:     Shire
Shire's Town Planning Scheme No 5:      Scheme
…
The Land
2.The land the subject of this review is Lot 42 Howell Street, Derby (Lot 42). Lot 42 has a frontage of 37 m to Howell St, an area of 1013 sq m and is developed with a single storey house.
Zoning
3.Lot 42 is zoned 'Residential R15' under the Scheme.
Application
4.The development in this review comprises a:
•10 m x 6 m outbuilding;
•8 m x 6 m carport;
•outbuilding wall height = 3.9 m; and
•outbuilding ridge height = 4.565 m.
5.The carport will be attached to the outbuilding and the two structures will share a common roof.
6.The proposed setbacks are:
•carport = 13 m front setback to Howell St;
•outbuilding = 19 m front setback to Howell St;
•outbuilding = 1.5 m to western side boundary; and
•outbuilding = 4.6 m to rear boundary.
The Scheme
7.Table 1 of the Scheme contains the objectives and policies of the zones in the Scheme. There are 2 objectives and 4 policies that apply to the Residential Zone.
8.The fourth policy objective of the Residential Zone is relevant in this review and provides as follows:
'(iv)To limit the height and scale of any residential development to that of a domestic character consistent with surrounding residential development.'
9.Clause 4.1.3 of the Scheme provides:
'Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes.'
10.Pursuant to cl 7.5 of the Scheme, Council of the Respondent is required to have regard to certain matters in considering an application for planning approval, including the following:
'(a)the provisions of this Scheme …;
(b)the objectives and policies of the zone within which the development is proposed;
(i)the requirements of orderly and proper planning;
(j)the preservation of the amenities of the locality;
(k)any other planning considerations which the Council considers relevant;
(l)any relevant submissions or objections received on the application.'
11.Clause 4.10.1 of the Scheme makes the following provision in relation to the approval of outbuildings:
'No outbuilding exceeding 40 [square metres] in area shall be erected on any Residential lot or exceeding 60 [square metres] on any RuralResidential lot without the Planning Consent of the Council in accordance with Part 7 of the Scheme.'
R Codes
12.Part 6.10 of the R Codes stipulates the following objective for incidental development:
'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.'
13.Performance Criteria 6.10.1 P1 of the R Codes provides that outbuildings for incidental development:
'6.10.1 P1Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.'
14.Acceptable Development criteria 6.10.1 A1 of the R Codes provides that outbuildings are deemed to comply with the relevant performance criteria if the outbuilding meets the following requirements:
i)are not attached to the dwelling;
ii)are nonhabitable;
iii)collectively does not exceed 60 sq m in area;
iv)does not exceed a wall height of 2.4 m;
v)does not exceed a ridge height of 4.2 m;
vi)does not fall within the primary street setback area;
vii)does not reduce the required open space in Table 1; and
viii)would comply with the siting and design requirements for the dwelling but does not need to comply with the rear setback for the dwelling.
15.The proposed shed does not satisfy Acceptable Development clause 6.10.1 A1 by reason of:
(a)the shed's wall height of 3.9m, which exceeds the wall height of 2.4m stipulated by cl 6.10.1 A1(iv); and
(b)the shed's ridge height of 4.565m, which exceeds the ridge height of 4.2m stipulated by cl 6.10.1 A1(v).
16.The Shire does not have any adopted policies that are relevant in this review.
Third party submissions on application
17.Three submissions from third parties were received objecting to the outbuilding and copies of the submissions are included as Document 3 in the Agreed Bundle of Documents.
Determination of application
18.On the 27[th] October 2011, the respondent considered the application and resolved the following:
'That the Council, pursuant to Town Planning Scheme No. 5 APPROVES the application for an Outbuilding on Lot 42 Howell Street, Derby in accordance with the application and plans submitted on 16 August 2011 subject to the following conditions:
i)The building being located with a minimum setback from the rear boundary of the lot not less than 9.6 metres as marked in red on the attached plan marked Plan B;
ii)That the shed is not to be used for accommodation purposes;
iii)That suitable treatments are to be applied to the area of land between the shed and the property boundary to ensure that stormwater is able to be retained on site and does not flow onto the adjoining property. The applicant is to provide details of what methods are to be employed prior to the issue of the Building Licence and are to be satisfactory to the Council;
iv)That the shed walls are to be constructed in [Colorbond] materials and be a colour complementary with the existing buildings. Details of the proposed colour are to be provided to the Council for approval prior to the issue of a Building Licence and are to be to the satisfaction of the Shire Planner.'
19.The application for review commenced by the Applicant seeks the deletion of condition i), which requires the rear setback of the proposed outbuilding to be increased from [4.6m] to 9.6m.

Issue

To put the issue in context, the applicants applied to build a 10 metre by 6 metre outbuilding and an attached 8 metre by 6 metre carport in an area between their existing dwelling and a side boundary. The proposed structures have a common roof. The outbuilding has a proposed ridge height of 4.565 metres and a wall height of 3.9 metres.
The respondent approved the proposal with various conditions, one of which is the subject of this review. Leaving aside the contentious condition, having reviewed the evidence, the Tribunal agrees that approval of the proposal was reasonable.
The contentious condition concerns a variation to the proposed front and rear setbacks.
The proposed setbacks (measured at right angles to relevant boundaries) were:
•an approximate 10 metre front setback to the carport;
•an approximate 17 metre front setback to the outbuilding;
•a 1.5 metre side boundary setback; and
•a 4.6 metre rear boundary setback.
The condition in dispute is condition i), which reads:
The building being located with a minimum setback from the rear boundary of the lot not less than 9.6 metres as marked in red on the attached plan marked Plan B.
The effect of this condition is to move the proposed structures 5 metres closer to the street.
The parties agreed to the following issue:
Whether condition i) of the approval granted by Council of the Respondent on 27 October 2011 should be upheld, having regard to the visual impact of the proposed outbuilding on the amenity of the neighbouring properties and the locality.
Both parties submitted evidence concerning streetscape. The issue, as framed, is broad enough to include streetscape. However, the parties also submitted evidence on the screening function of the outbuilding in its proposed location. The applicants argued that the outbuilding in the approved location does not provide any screening from overlooking from the neighbour's balcony. Therefore, the Tribunal finds the issue should be extended to read as follows:
1.Whether condition i) of the approval granted by Council of the respondent on 27 October 2011 should be upheld, having regard to the screening function of the proposed outbuilding and the visual impact of the proposed outbuilding on the amenity of the neighbouring properties and the locality.
Having regard to the issue to be determined, there is a possibility that somewhere between the applicants' preferred setback and the approved setback is a solution that could meet the applicants' screening requirements and the respondent's visual amenity requirements.
The parties did not provide any evidence to support a location somewhere between the proposed and approved setback. Therefore, the Tribunal will find in favour of either retaining the condition with a rear setback of 9.6 metres, or deleting the condition, resulting in a 4.6 metre rear setback.

The respondent's case

The respondent argued that it had previously refused the application approximately two years ago. On this current application, although still concerned about the bulk of the proposal and its impact on the visual amenity of the neighbours, flexibility had been displayed by approving the proposal with a condition that shifted that bulk of the outbuilding to a point with minimal visual impact on the adjoining neighbour. The concession to approve the proposal rather than to refuse the application was made in recognition of the applicants' need to safely store large items, such as a four wheel drive and a boat, and also in recognition of the fact that the shed had been purchased with materials delivered to the site.
During the hearing, Mr Myers explained that the Council was less concerned about the carport because it was open sided. Also, the Council was less concerned about the ridge height and the size of the structure. The main concern was the 3.9 metre height of the walls of the proposed outbuilding. This concern regarding the wall height is accentuated by its proposed location, where the entire 10 metre length of the wall was exposed to view from the adjoining neighbour's rear yard.
The proposed outbuilding exceeds 40 square metres and, therefore, under cl 4.10.1, of the Shire of Derby/West Kimberley Town Planning Scheme No 5 (TPS 5 or Scheme), requires the consent of the Council. Similarly, cl 4.1.3 of TPS 5 requires development of land for residential purposes to comply with the Residential Planning Codes of Western Australia (R Codes). The proposal requires assessment under the performance criteria of the R Codes.
Amongst various matters for the Council to consider under cl 7.5 of the Scheme when determining a planning application are:
…
(b)the objectives and policies of the zone within which the development is proposed;
…
(j)the preservation of the amenities of the locality;
…
(l)any relevant submissions or objections received on the application.
The respondent received two written objections referring to the excessive visual intrusion.
The respondent did not believe the 3.9 metre high walls in the proposed location met residential zone objective (b) of TPS 5, which requires, in part, the protection of the amenity and the character of residential areas. Similarly, it did not comply with residential zone policy (iii), requiring consistency with the R codes, or residential zone policy (iv), requiring limiting the height and scale to that of a domestic character consistent with surrounding residential development.
In his witness statement, Mr Myers stated that:
… the size of the shed is more typical of a shed used in industrial applications and is not of a normal residential scale. …
This statement became a liability for the respondent when Mr Myers was crossexamined in the context of typical industrial sheds in the Derby Light Industry zone. Although giving some ground during the hearing, Mr Myers maintained that, in his expert opinion, the shed was not of a normal residential scale.
Mr Myers noted that the 3.9 metre wall height significantly exceeded the acceptable development standard of 2.4 metre wall height for an outbuilding in cl 6.10.1 A1(v) of the R Codes. He argued that the onus was then on the applicants to demonstrate that the development satisfies performance criteria cl 6.10.1 P1 of the R Codes, which requires:
[o]utbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
He did not believe the applicants had demonstrated compliance with the performance criteria, especially having regard to the explanatory guidelines of the R Codes, which recognise the history of backyard sheds in Australia and the reasonable case for relaxed standards for some outbuildings. Although presenting a case for relaxed standards, the explanatory guidelines set some criteria:
… any outbuilding that is to be exempt from the standards of the dwelling should be:
•relatively small in area;
•relatively low in height;
•sited so as to preserve the use and amenity of open space;
•set back sufficiently from boundaries;
…
•excluded from street setback areas.
Therefore, having regard to all of the above, Mr Myers argued that the respondent attempted to find a reasonable compromise that enabled the applicants to build their oversized and overheight shed and, at the same time, reduce the impact on the visual amenity of the neighbours.
The respondent's solution was to locate the outbuilding between the two existing dwellings, where, from most of the neighbour's backyard, the outbuilding would not be visually dominant.
Mr Myers was of the opinion that the revised location would not have a negative impact on streetscape, because only the carport would be in front of the applicants' dwelling and, at the closest point, would be 4.8 metres from the front boundary.
Finally, Mr Myers argued that reasonable privacy would be maintained because, when viewed from most locations on the neighbour's balcony, the applicants' back steps and some of the backyard would be screened from view. He noted that the balcony complies with the R Codes; that the R Codes do not provide total privacy protection; and that, if the applicants were so concerned with privacy, they could have planted some screening vegetation.

The applicants' case

Mr Samec observed that, to some extent, the respondent's argument on excessive height and scale is negated by the fact that the respondent has approved the height and scale of the outbuilding and carport. The only question is the location.
Mr Samec observed that the proposed location is extremely important to the applicants because, at the moment, they have no privacy anywhere in their backyard from the neighbour's balcony. They have not planted screening because it has always been their intention to build a shed in the proposed location to accommodate their boat and provide some visual screening. Mr Samec agreed with Mr Myers that it is not the intention of the R Codes to provide absolute privacy protection. Mr Samec's argument was that the shed in the proposed location does not provide absolute protection but, if the shed is located in accordance with the Council's condition, it does not provide any meaningful protection and does not even protect the back steps. In conclusion, on the matter of privacy, Mr Samec stated:
The owners of the subject land have young children and wish to build a swimming pool in the backyard. Improved visual privacy is therefore important to the future residential use of the subject land.

Moving away from privacy, the main thrust of Mr Samec's argument was that the proposal met the performance criteria of the R Codes because it did not unreasonably impact on the amenity of neighbours, especially when that amenity is regarded in the context of policy objective (iv) of the Residential zone, which is:
[t]o limit the height and scale of any residential development to that of a domestic character consistent with surrounding residential development.
During the hearing, Mr Samec submitted evidence that:
a)Houses in Derby in general and, particularly in the immediate locality, are built on stumps at least 600 millimetres above finished ground level.
b)Houses in Derby in general and, particularly in the immediate locality, have a ceiling height of 2.8 metres or 400 millimetres higher than the standard 2.4 metre ceilings in project homes in Perth.
c)As a consequence of (b) above, that single storey houses in surrounding residential developments are generally 1 metre higher than anticipated for residential development in Perth and therefore have a wall height of at least 3.8 metres.
After some extensive debate between the experts, Mr Myers conceded the above points.
Mr Samec then pointed to evidence in the agreed bundle, where drawings had been submitted showing front and rear elevations of the applicants' house, the proposed outbuilding and the affected neighbour's house. These drawings showed the outbuilding had a wall height approximately the same as the applicants' house and significantly below the neighbour's two storey high wall. Similarly, the drawings show the outbuilding's ridge line is lower than both buildings, and 1 metre to 1.5 metres below the ridge line projected between the two dwellings.
Mr Samec argued that the R Codes are a 'one size fits all' document and do not take into account the particular circumstances of Derby. The lots in Derby are larger than typical suburban lots in Perth. The particular design requirements in Derby result in single storey dwellings with a wall height of 3.8 metres, typically 1 metre higher than anticipated for a single storey dwelling in the R Codes. Finally, Mr Samec observed that in Derby, four wheel drive ownership is very high, but, more significantly, boat ownership is high. Derby does not have a marina, and boats need to be located on residential properties, or stored in a shed, to be safe during the cyclone season.
Taking all these factors into account, Mr Samec argued the proposed outbuilding is reasonable in size, height and scale for Derby; it is consistent with the nature of the community and consistent with the policy requirement defined for this zone in the Scheme.
Therefore, Mr Samec argued that there is no rational basis to relocate the proposed shed.
Finally, on the matter of streetscape, Mr Samec agreed with Mr Myers that the carport was capable of being approved in the front setback area. However, Mr Samec argued that, although it was capable of approval, it was undesirable because:
•it is unnecessary when it can easily be located well behind the building line with no impact on streetscape; and
•it would be inconsistent with the open streetscape in the locality, where Mr Samec was not aware of any carports forward of the building line.

Conditions

Before proceeding to the findings, the Tribunal will deal briefly with conditions. As required by direction of the Tribunal, the respondent prepared a draft 'without prejudice conditions' to be imposed if the Tribunal found in favour of the applicants. After some discussion between the parties and the Tribunal, it was agreed the proposed conditions were unnecessary, as they merely repeated the remaining conditions already imposed and not contested by the applicants.

Findings

This application for review involves competing amenity requirements, bearing in mind the issue is the particular location of the outbuilding.
In the applicants' preferred location, their amenity requirements for some privacy are satisfied, but the neighbours claim loss of amenity due to visual intrusion directly related to the height of the wall and the bulk of the building.
In the respondent's preferred location, the neighbour's visual amenity is protected to an acceptable level, but, on the other hand, the applicants will be left with no effective or usable visual privacy in their backyard. The respondent's preferred location, in the Tribunal's opinion, raises significant streetscape amenity issues.
The Tribunal was hampered by the lack of any testable evidence from the affected neighbours. The objecting side and rear neighbours did not appear as witnesses and did not submit witness statements. There was no viewing of the neighbours' properties, so it was not possible to determine whether the concerns are genuine or exaggerated.
In the case of the adjoining neighbour, the Tribunal is left with three submissions made by this neighbour to the respondent. The two most recent submissions ultimately refer to his submission made against an almost identical application made by the applicants in 2010, where the neighbour stated:
I am writing to you in [r]egards to the letter received on the 10[th] June 2010 for the proposed shed on [L]ot 42 Howell [Street], Derby.
After much consideration I have a couple of concerns with the current proposal. The current location for the shed is directly in front of my main outdoor living area where we spend a lot of our time. Due to the 3.9meter [sic] wall height and the total overall size of this shed is 4.565 meters [sic] height this is going to impact on my outdoor living. My proposed alternative solutions are as follows[:]
1.Move the shed as far to the front of the block as possible[,] this way the shed and house will blend in and will not affect my outdoor living area[.]
2.The shed is to be of a colour to blend in with the natural surroundings and to minimise glare from the westerly sun.
3.All stormwater will need to be managed and directed to Shire Street drains and not into adjoining property.
…
It is not clear what 'directly in front' means. It may be that the neighbour means 'adjoining'; that is, at ground level between the underside of the balcony and the common side fence. However, from the aerial photographs, this area adjoins a small shed in the neighbour's backyard. The aerial photograph in the agreed bundle of documents indicates a grassed area on the other side of the area under the balcony. The neighbour's idea of moving the shed as far forward as possible so the shed 'will not affect my outdoor living' gives no recognition to the applicants' almost total loss of backyard privacy from the neighbour's balcony.
There is a similar objection from one of the rear neighbours, who, in their 2010 submission, stated:
… since moving into our house we now realise the impact this oversized shed will have while enjoying our outdoor entertainment area and pool.
In most locations of the State, the Tribunal is likely to agree with the respondent and neighbours that the shed is excessively high and out of character with the scale and height of the locality. However, the arguments submitted by Mr Samec relating to typical heights of existing dwellings in Derby, with particular reference to this locality, lead the Tribunal to agree with the applicants that the proposal complies with the Residential zone policy objective (iv) which is:
[t]o limit the height and scale of any residential development to that of a domestic character consistent with surrounding residential development.
Clearly, the height is consistent with surrounding residential development and, despite the efforts of Mr Myers to describe the outbuilding as typical of sheds used in industrial applications, the Tribunal finds that, although the shed is large, it is consistent with domestic character. During the hearing, the attempt to classify the shed as a typical industrial shed collapsed.
For similar reasons, the Tribunal finds that the shed in the applicants' preferred position meets the performance criteria of the R Codes. It may not meet the performance criteria in another town, or even another locality, but in this particular locality of Derby where single storey dwellings generally have wall heights of 3.8 metres on large properties, the proposal meets the performance criteria.
Both objecting neighbours indicated a preference to move the shed as far forward as possible. There is no indication whether the 9.6 metre rear setback, as required by condition i), was determined by a balanced examination of amenity requirements, or whether it was simply a response to the objections. It appears to be the latter.
During the hearing, Mr Myers indicated the seemingly reasonable view that the position was determined by locating the shed between the two dwellings. That rationale would be reasonable if there were no other factors to consider.
Surprisingly, the report to the Council stated:
The revised location would not compromise the screening function the shed would afford the applicants' property …
This statement is clearly incorrect. The respondent's condition removes any effective screening function. The neighbour's balcony may comply with acceptable development standards, but the site viewing clearly indicates that it fails to comply with performance criteria.
Finally, the Tribunal does not agree with the respondent's argument that condition i) does not have an adverse impact on streetscape amenity. In many localities in the State, a carport could be approved in the proposed location without any adverse impact on streetscape. However, in this locality, and in this particular case, it is unnecessary, because it can easily be accommodated behind the building line. It is undesirable because it is inconsistent with the locality, where the evidence available to the Tribunal indicated that there are no carports in front of the building line.
In this particular case, a setback in front of the applicants' building line is especially undesirable in terms of impact on streetscape because of the large setback of the neighbour's house. The applicants' house is set back just over 9 metres from Howell Street, and the neighbour's house is set back approximately 15 metres. The respondent's condition i) will result in a setback of 4.8 metres to the carport, unacceptably far forward of an average setback line between the two dwellings.
Finally, in closing, Mr Myers referred to four decisions of this Tribunal dealing with outbuildings where the applications had failed and the respondent was successful. The matters were:
•Iemma and Roebourne [2006] WASAT 116, where the Tribunal supported the respondent's decision to refuse a boatport;
•Stockdale and Mundaring [2006] WASAT 356, where the Tribunal supported the respondent's decision to refuse an oversized shed to house seven motor vehicles;
•Richardson and Serpentine Jarrahdale [2007] WASAT 73, where the Tribunal supported the respondent's decision to impose two contested conditions: one involving location and one involving landscape screening for an application to build a shed and carport on a 4,000 square metre lot, and a landscape protection zone; and
•Ness and Port Hedland [2010] WASAT 151 where the Tribunal supported the respondent's decision to refuse a 121 square metre shed on a strata lot of 640 square metres.
Mr Myers did not explain why these cases were relevant, or which particular clauses of the decisions may have a bearing on this current matter before the Tribunal. The Tribunal has reviewed these decisions and does not find a reason to depart from its findings above. These decisions confirm the Tribunal's statements earlier in these reasons that the Tribunal's findings in this case may not apply to other towns and localities in the State. These findings are specific to the particular circumstances of this application for review, and the characteristics of the locality in Derby.

Conclusion

Given the above findings, the Tribunal is satisfied that the application for review should be allowed for the following reasons:
1)The proposed increase in rear setback is unnecessary because, in the context of the locality, the proposal is consistent with the planning framework.
2)The proposed increase in rear setback significantly reduces the applicants' privacy amenity for a marginal increase in the neighbour's visual amenity that may be unnecessary.
3)The proposed increase in rear setback has an unacceptable adverse impact on streetscape amenity.

Orders

Therefore, the Tribunal makes the following orders.
1.The application for review is allowed.
2The decision of the respondent to impose condition i) is set aside and a decision is substituted that grants approval with the remaining conditions.

I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER