MURRAY and SHIRE OF SERPENTINE - JARRAHDALE
[2006] WASAT 258
•30 AUGUST 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MURRAY and SHIRE OF SERPENTINE - JARRAHDALE [2006] WASAT 258
MEMBER: MS M CONNOR (MEMBER)
HEARD: 11 MAY 2006 (FURTHER WRITTEN SUBMISSIONS RECEIVED 22 MAY 2006, 23 MAY 2006, 30 MAY 2006 AND 6 JUNE 2006)
DELIVERED : 30 AUGUST 2006
FILE NO/S: DR 98 of 2006
BETWEEN: GLENN MURRAY
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning – development – Retrospective approval required – Placement of sea container on subject land for use as an outbuilding for the storage of private motor vehicles and motor vehicles parts – Urban Development zone – Orderly and proper planning – Locality in state of transition – Protection of the residential character of the locality – Preservation of the amenity of the area – Visual impact on streetscape and adjoining properties
Legislation:
Planning and Development Act 2005 (WA)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 1.6, cl 1.6(a), cl 1.6(b), cl 5.1.1, cl 5.1.1(d), cl 5.1.2, cl 5.3.2(a), cl 5.3.4, cl 5.4, cl 5.4.1, cl 5.17, cl 5.18.7.1, cl 5.18.7.2, cl 5.18.7.3, cl 6.4.2, cl 6.4.3, cl 6.4.3(a), cl 6.4.3(b), cl 6.4.3(c), cl 6.4.3(d), cl 6.4.3(g), cl 6.4.3(h), cl 6.8.1, cl 7.1
Town Planning and Development Act 1928 (WA), s 8A(1)
Residential Design Codes of Western Australia 2002
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms M Kenny (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Serpentine-Jarrahdale
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Glenn Murray applied to the State Administrative Tribunal for review of the decision of the Shire of Serpentine-Jarrahdale refusing retrospective planning approval for the placement and use of a sea container as an outbuilding on No 1 Wallace Street, Mundijong. The principal issues identified were:
1.Whether it is appropriate, in the interest of orderly and proper planning and maintaining the residential character and amenity of the area, to have a sea container located on a residential property in the Urban Development zone.
2.Whether the sea container will have an adverse impact on the visual amenity of the street and adjacent properties by virtue of the design, materials and finish.
3.Whether the sea container should comply with the Acceptable Development provisions contained in the Residential Design Codes of Western Australia 2002.
The Tribunal found that the sea container was clearly visible from Adonis Street and from surrounding properties and that the visual outlook from the street and the residences was significantly diminished and the character of the area was negatively affected by the visual prominence of the sea container. The Tribunal considered that approval of development that diminished the existing residential character of the area and negatively impacted on the existing and future amenity of the locality, was contrary to orderly and proper planning. Furthermore, the Tribunal considered the form of the structure was discordant with the residential character of the area and visually detracted from the streetscape and significantly diminished the visual outlook of adjoining properties.
In light of the Tribunal's determination in relation to Issues 1 and 2, the Tribunal found that it was unnecessary to consider and express findings in relation to this Issue 3.
The application for review was dismissed and retrospective planning approval refused.
Introduction
Mr Glenn Murray (applicant) made application to the Shire of Serpentine-Jarrahdale (respondent) for retrospective planning approval for the placement and use of a sea container as an outbuilding on Lot 701 (No 1) Wallace Street, Mundijong (subject land).
The development application was refused by the respondent for the following reasons:
"1.It would not be appropriate in the interest of orderly and proper planning and preservation of the residential character and amenity of the area to grant approval for a sea container to be used as a storage facility on a residential property.
2.The sea container will have an adverse impact on the visual amenity of the street and adjacent properties by virtue of its design, materials and finish.
3.The proposed development is contrary to clause 7 1 of the Shire of Serpentine‑Jarrahdale's Town Planning Scheme No 2 by virtue of its design, materials and finish. Clause 7.1 states as follows:
'7.1 GENERAL APPREARANCE OF BUILDINGS AND PRESERVATION OF AMENITY
No person shall without the approval of the Council erect or commence to erect a building which by virtue of its colour or type of materials, architectural style, height, bulk or ornamental or general appearance has, in the opinion of Council, an exterior design which is out of harmony with exterior designs of existing buildings or is likely to injure the amenity of the locality."
The applicant, on 30 March 2006, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) to have the decision reviewed.
Subject land
Lot 701 (No 1) Wallace Street, Mundijong is 2000 square metres in area and is located on the corner of Adonis and Wallace Streets.
Structures on the subject land include an existing single storey dwelling, a colorbond shed, swimming pool and the sea container.
Proposal
The sea container is constructed from pressed metal and is 12.2 metres long by 2.43 metres wide by 2.59 metres high. The sea container is being used for the storage of private motor vehicles and motor vehicles parts.
The sea container is located in the north western corner of the subject land and is set back 1.5 metres from Adonis Street and 2.8 metres from rear boundary.
Planning Framework
The subject land is zoned "Urban Development" under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme). The scheme maps do not depict a density code over the subject land, and therefore, by virtue of cl 5.3.2(a) of the scheme, residential development is to accord with the R10 density code.
Clause 1.6 of TPS 2 sets out the Objectives of the Scheme. The most relevant subclauses are (a) and (b) which states:
"(a)to secure the amenity, health, safety and convenience of the inhabitants of the District.
(b)to zone land for the purpose described in the Scheme so as to promote the orderly development of the land by making suitable provisions for land use."
Clause 5.1.1 of TPS 2 requires that a person shall not carry out development of any land without first having applied for and obtained planning consent under the Scheme. There is no doubt that the placement of a sea container on the subject land constitutes "development" as defined in the TPD Act (now the Planning and Development Act 2005), and therefore TPS 2. Clause 5.1.2 sets out the exceptions to the requirements of cl 5.1.1 and includes subclause d) which addresses the erection of a single dwelling house, including ancillary outbuildings. However, as the subject land is zoned "Urban Development" and a single house is not listed as a permitted use within that zone, planning consent is required in this instance.
Planning consent was not obtained prior to the placement of the sea container on the subject land. This situation can be remedied under cl 6.8.1 of the scheme which provides authority for the Council to grant planning consent to a use or development already commenced or carried out, regardless of when it was commenced or carried out, providing the development conforms to the provisions of the scheme.
Clause 5.3.4 of TPS 2 requires that development of land for residential purposes dealt with by the Residential Design Codes of Western Australia 2002 (the Codes) is to conform to the provision of the Codes, unless otherwise specified in TPS 2. Clause 5.4 of the Scheme sets out the variations and exclusions to the Codes. Of particular relevance to this matter is cl 5.4.1 which requires that where the provisions of the R10 or R12.5 density codes apply the minimum setback from rear boundaries shall be 7.5 metres.
The purpose of the "Urban Development" zone is to provide for the orderly planning of large areas of land in a locally integrated manner and within a regional context, whilst retaining flexibility to review planning with changing circumstances (cl 5.17). This is to be achieved through the establishment of structure plans and no new development shall be commenced or carried out until a structure plan has been approved (cl 5.18.7.1). According to the evidence of Ms Kenny, Senior Planner with the Shire of Serpentine‑Jarrahdale, no structure plan has been approved by the respondent for this area. It is expected that the structure plan will be completed within 12 months.
Clauses 5.18.7.2 and 5 18.7.3 set out the exceptions to cl 5.18.7.1 and provide authority for the Council to approve development of a single house and development or use for other than a single house, subject to the Council being satisfied of a number of specified matters.
Clause 6.4.3 of TPS 2 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Further, cl 6.4.2 sets out the matters that the Council is to have regard to in determining an application. The relevant matters relating to this application are as follows:
•the purpose for which the subject land is zoned or approved for under the Scheme (subclause (a));
•the purpose for which the land in the locality is reserved, zoned or approved for use under the Scheme (subclause (b));
•the size, shape and characteristics of the land (subclause (c));
•the provisions of the Scheme and any Council policy affecting the land (subclause (d));
•the orderly and proper planning of the locality (subclause (g)); and
•the preservation of the amenity of the locality (subclause (h)).
Furthermore, cl 7.1 of TPS 2, which relates to the general appearance of buildings and preservation of amenity, states that:
"No person shall without the approval of the council erect or commence to erect a building which by virtue of its colour or type of materials, architectural style, height, bulk or ornamental or general appearance has, in the opinion of Council, an exterior design which is out of harmony with exterior designs of existing buildings or is likely to injure the amenity of the locality."
Planning issues
The following three principal issues were identified and require consideration in the review of this matter:
(i)Whether it is appropriate, in the interest of orderly and proper planning and maintaining the residential character and amenity of the area, to have a sea container located on a residential property in the Urban Development zone.
(ii)Whether the sea container will have an adverse impact on the visual amenity of the street and adjacent properties by virtue of the design, materials and finish.
(iii)Whether the sea container should comply with the Acceptable Development provisions contained in the Codes.
The Tribunal will address each in turn.
Whether it is appropriate, in the interest of orderly and proper planning and maintaining the residential character and amenity of the area, to have a sea container located on a residential property in the Urban Development zone.
Ms Kenny described the locality as an area in transition moving from a rural townsite to a more urban environment. She contended that lots within Wallace Street contained only single residential dwellings on 2000 square metres lots and characterised the street as residential in nature. She considered the portion of Adonis Street adjacent to Wallace Street to be more consistent with rural lifestyle lots given the lots sizes and the rural activities carried out on some of the lots. Ms Kenny asserted that 90% of the houses in Wallace Street and the portion of Adonis Street adjacent to the subject land were constructed of brick with tiled or colorbond roofs. She also contended that the outbuildings on these residential properties were predominantly colorbond steel shed, in colours that matched or harmonises with the colours of the material of the houses, with generally low pitched roof of between 5 to 15 degrees.
Mr Murray submitted that Wallace Street had been developed with larger than the "normal" residential lot and that as a consequence, the properties contained industrial sized workshops and sheds. He asserted that a number of properties operated home business, some incorporating trucks. He considered the character of the immediate locality to be comparable to a rural style community, where lifestyles reflected the development of the lots.
Mr Murray produced evidence showing the location of a number of sea containers within the immediate locality and surrounding areas. Of particular relevance were six sites located with the immediate locality of the subject land. The photographs revealed several of the sea containers to be in a dilapidated state. Mr Murray was at pains to point out to the Tribunal that the respondent had placed three sea containers on land less than 500 metres from the subject land. He argued that the residential character of the area was already affected by the prevalence of sea containers and other non-residential activities in the locality. He contended that a precedent had been established and that the proposal was consistent with character of the area and would not detract from the amenity of the locality.
The respondent produced a zoning map of the Mundijong townsite and surrounds to demonstrate that there were various zonings/reservations within the area and that three of the identified six lots were delineated within a different zone/reserve under the Scheme. Two of the sites were reserved for "Public and Community Purposes" and identified as the Council Depot and the Fire Brigade & SES Depot. The third site, which was located within a distinct cell some distance from the subject land, is zoned "Special Use" – residential/industrial composite zone under the Scheme. The respondent asserted that these three sites could not be considered in the same light as those situated in the "Urban Development" zone, which was intended for residential use only. The Tribunal agrees.
The other remaining three sites are located within the "Urban Development" zone. According to the respondent, prior to the "Urban Development" zone being placed over the Mundijong townsite in 1999, these sites were zoned "Rural", whereas the subject land was zoned "Residential R 10". Further, the respondent submitted that it was unaware of sea containers on two of the properties, most likely due to size of the properties (1-2 hectares) and the screening of the sea containers from the street. In relation to the third site, the respondent was aware that a sea container had been placed on site for the temporary, secure storage of building materials whilst the owner builder carried out extensions and renovations to the dwelling on the property.
The respondent submitted that the zoning of "Urban Development" had been placed over zoned land to control the development of the area whilst a structure plan for the future urban development of Mundijong was being prepared. The expectation is that Wallace Street and surrounds will be retained as residential land but most likely at a higher density. The respondent contended that sea containers are not appropriate structures within residential areas and given the residential character of Wallace Street and the expected urbanisation of the immediate locality, a sea container should not be approved on the subject land as it would adversely affect the residential character and amenity of the area.
It is clear from the evidence that the locality is in a state of transition. Furthermore the respondent has identified the need to plan for the future growth of the Mundijong townsite and is currently preparing a structure plan to guide development. There is a general presumption provided for in the scheme against development in the "Urban Development" zone prior to the adoption of a structure plan, unless it can be demonstrated that such development will not have an adverse effect on the orderly and proper planning of the area intended for the preparation of a structure plan.
There are clearly identifiable residential concentrations within the locality, some of which are surrounded by larger lots, currently used for rural lifestyle, but suitable for future subdivision into residential lots. Wallace Street and Senior Court can be characterised as a residential enclave surrounded by larger rural living lots. Although the applicant was able to identify sea containers located on land within the immediate locality, the circumstances are not comparable given the difference between the zoning/reservation of land under the scheme, the temporary nature of one of the examples cited and the fact that the other two examples do not have approval.
Sea containers have an industrial appearance and are generally not considered appropriate structures within residential areas as they are visually intrusive and unsympathetic with the form and style of development found in residential areas. In the broader context, the transitional nature of the locality and the prevalence of larger rural lifestyle lots may assist in lessening the visual impact of such a structure on the character of the area. However, the subject land is contained within an identifiable residential enclave and as such, the residential character and amenity of the immediate surrounds requires protection from any form of development that may have a detrimental impact.
The photographs provided by the parties show that the sea container is clearly visible from Adonis Street and from surrounding properties. The visual outlook from the street and the residences is significantly diminished and the character of the area is negatively affected by the visual prominence of the sea container. The locality was zoned "Urban Development" in order to control the development of the area whilst a structure plan is prepared to guide the future growth of this area. The approval of development that diminishes the existing residential character of the area and has a negative impact on the existing and future amenity of the locality is contrary to orderly and proper planning. Therefore, on this issue, the Tribunal considers that the application warrants refusal.
Whether the sea container will have an adverse impact on the visual amenity of the street and adjacent properties by virtue of the design, materials and finish.
Mr Murray argued that the form of the walls and roof of the sea container were of a similar design to many modern profiles of colorbond materials commercially available. He referred the Tribunal to the photographs he provided of the sea container and contended that the appearance of the sea container did not visually detract from the streetscape or adversely impact on the visual amenity of adjacent properties. Mr Murray also indicated that he was prepared to paint the sea container to match the colour scheme of the existing structures on the subject land and ensure that it was maintained in a good state of repair. Furthermore, he was prepared to plant additional screening trees to ameliorate any impacts.
Given my finding on issue 1, it is strictly unnecessary to consider this issue. However, to further elaborate, the Tribunal considers that a sea container is a very recognisable form usually associated with an industrial setting and unlikely to be visually interpreted as a residential outbuilding. The form of the structure is discordant with the residential character of the area and visually detracts from the streetscape and significantly diminishes the visual outlook of adjoining properties. It follows that on this issue the application also warrants refusal.
Whether the sea container should comply with the Acceptable Development provisions contained in the Codes.
The core matters identified in respect to this issue related to:
•whether a sea container falls within the definition of a "building" as defined in the Codes and as such should be considered under Element 10 "Incidental Development Requirements" of the Codes; and
•what are the applicable setbacks, particularly in relation to the rear setback given cl 5.4.1 of TPS 2.
In light of the Tribunal's determination in relation to issues 1 and 2, it is unnecessary to consider and express findings in relation to this issue.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse to grant retrospective approval for the placement and use of a sea container as an outbuilding on Lot 701 (No 1) Wallace Street, Mundijong is affirmed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
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