NESS and TOWN OF PORT HEDLAND - [2010] WASAT 151

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: NESS and TOWN OF PORT HEDLAND [2010] WASAT 151

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 21 SEPTEMBER 2010

DELIVERED : 14 OCTOBER 2010

FILE NO/S: DR 219 of 2010

BETWEEN: WAYNE NESS
Applicant
AND
TOWN OF PORT HEDLAND
Respondent

Catchwords:

Town planning Development application Outbuilding Outbuilding without a dwelling in a residential zone Whether the proposal was capable of being approved - Whether the proposed outbuilding was consistent with the planning framework Residential Design Codes Acceptable development standards Performance criteria Scale Bulk Maximum floor area Maximum floor area as a percentage of site area Height Setbacks

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.10.1 P1
State Administrative Tribunal Act 2004 (WA), s 27
Town of Port Hedland Town Planning Scheme No 5, cl 3.2.6, cl 3.2.6(b), cl 6.2.3

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr L Long (Representative)

Solicitors:

Applicant: N/A
Respondent: Town of Port Hedland

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

Outlook Contracting Pty Ltd and Town of Port Hedland [2009] WASAT 53
Sweetman and Town of Cambridge [2005] WASAT 278

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of refusal of a development application for an outbuilding at No 4A (Strata Lot 1 of Lot 965) Pilkington Street, Port Hedland.
The applicant proposed to erect the outbuilding prior to construction of a dwelling and, in addition to storing some household goods, proposed to use the outbuilding to store construction materials and equipment during construction of the dwelling.
The proposal was the same as an outbuilding that was approved by the respondent in January 2009. That approval had lapsed and, in the meantime, the respondent had adopted a planning policy that dealt with outbuildings.
The issues were:
•whether it was possible to approve an outbuilding without a dwelling; and
•whether the proposed outbuilding was consistent with the planning framework.
The Tribunal found that the proposal was capable of being approved. However, the scale and bulk of the outbuilding were determined to be excessive in the context of the site and the locality. Therefore, the Tribunal found that the proposed outbuilding was inconsistent with the planning framework.
It followed that the application for review was dismissed and the decision of the Council to refuse development approval was affirmed.

Introduction

These proceedings involve an application brought by Mr Wayne Ness (Mr Ness or applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Town of Port Hedland (Town or Council) made on 23June 2010, to refuse development approval for an outbuilding at No 4A (Strata Lot 1 of Lot 965) Pilkington Street, Port Hedland.
The Council's decision was described as follows in a letter to the applicant dated 24 June 2010:
… Council at its Ordinary Meeting held on Wednesday 23rd June 2010 resolved not to approve your application as submitted on 27th April 2010, but to approve the application in an amended format, as per the attached permit.
The attached planning consent stated as follows:
Planning consent is granted for a SINGLE HOUSE Shed addition at Lot 1 4A PILKINGTON STREET PORT HEDLAND 6721, as outlined in the application received 07 May 2010 [sic] (the date is incorrect but the error is insignificant) and indicated on the attached plans, subject to the following conditions:
1.This approval relates only to the proposed Single House Shed addition and other incidental development, as indicated on the approved plans. It does not relate to any other development on this lot.
2.The Single House is to be completed within twelve (12) months of this approval or the outbuilding shall be removed and the area made good all at the owners expense and to the satisfaction of the Manager Planning.
3.This approval to remain valid for a period of twelve (12) months.
4.Prior to the submission of a Building Licence, amended plans being submitted to and approved by the Town of Port Hedland incorporating the following amendments:
i)The shed area reduced to no more than 64m2;
ii)The shed wall height reduced to no more than 3.0m; all to the satisfaction of the Manager Planning.
5.The shed shall only be used for domestic storage and/or activities and not be used for commercial or industrial purposes or human habitation.
6.Prior to the submission of a Building Licence, a landscaping plan is to be provided incorporating planting elements (creepers or trees), which are strategically located within the rear, northern and southern boundary setback areas to provide vertical elements to break the bulk of the shed and all be to the satisfaction of the Manager Planning.
7.The colours of the proposed shed are to blend with those of the existing dwelling or environment to the satisfaction of the Manager Planning.
8.Stormwater disposal to be designed in accordance with Council's Engineering Department Guidelines, and all to the satisfaction of the Manager Planning.
The notice of consent also contained six footnotes, including footnote 3 which stated:
A building licence will not be issued for the shed outbuilding unless a licence has also been issued for a residence on the subject lot.
On the basis of the letter from the Council, it is not immediately clear whether the Tribunal is dealing with a refusal or a conditional approval.
Significantly, the amended format, as described in condition 4 of the permit, was not requested by the applicant and indicates approval of a shed approximately half the size of the shed proposed by the applicant.
The Tribunal will determine this matter on the basis of a refusal issued by the Town. Therefore, the options available to the Tribunal, in the context of this application, are to affirm the refusal of the Town or to set aside the decision and substitute a decision that development approval is granted, subject to various appropriate conditions.

History

The current proposal is the same as a proposed outbuilding that was submitted by the applicant to the Town on 7 January 2009. The Council's planning officers recommended refusal. However, the full Council voted to approve the proposal and recorded the reason for supporting the application as 'the development fits in with the aesthetics of the area; there have not been any [adverse] complaints received from neighbouring properties; and there is no detrimental impact on the area'.
The approval, dated 30 January 2009, contained the same conditions as the permit described in the introduction of these reasons, except that the 2009 approval did not contain the condition that required the applicant to reduce the shed to half of the proposed size.
Significantly, the conditions included a 12 month limit on the planning approval. The approval lapsed on 30 January 2010. The applicant described various circumstances explaining the delay, including health issues and communication with the Council. Nevertheless, based on the facts submitted in evidence, the Tribunal agrees with the respondent that planning approval had lapsed and a new planning application was required. That application was submitted in late April 2010 and subsequently refused by the Council, resulting in this current review.

Site and locality

The site has a rectangular shape with a street frontage and width of 15.14 metres, a length of 42.24 metres and an area of 639.67 square metres. The site is located in an established part of Port Hedland with few vacant lots. The area is intended for future medium density housing, with a zoning of R30, when sewerage is available in the locality.
The site is a strata lot created from parent Lot 965 which had an area of 1,275 square metres. The parent lot contained two dwellings which were severely damaged by Cyclone George. The dwellings have since been demolished. The Town supported an application to create two undersize strata lots on the basis of the history of the two previously approved dwellings.
The site is currently vacant, apart from a carport and small shed which will be removed when the future dwelling is built. The adjoining strata lot is also vacant, although Council has recently approved plans for a single storey dwelling. The other adjoining lot on the side boundary contains a single dwelling.
The property at the rear of the site is owned by the Town and has been developed with housing for aged persons. There are a series of storerooms and a clothes drying area on the aged persons' site in closest proximity to the proposed outbuilding.
The Tribunal had the benefit of a viewing of the site, in addition to some other relevant properties, in the company of the parties.

Planning framework

The site is zoned 'Residential' and has a residential density coding of 'R12.5/30' under the Town of Port Hedland Town Planning Scheme No 5 (TPS 5 or Scheme). The proposed use, 'a shed', is a nondefined use within TPS 5. Clause 3.2.6 of TPS 5 provides that where development of land for a particular purpose is not specifically mentioned in the zoning table, the use may be approved by absolute majority of the Council. The respondent's evidence includes a statement that it has been Council's 'practice to assess sheds on vacant land as a Single House Shed addition. When approving these applications it is required prior to obtaining a building licence … for a single house [to be] submitted and approved'. [sic]
On 23June 2010, the respondent adopted Local Planning Policy No 11 Regional R Code Variations (LPP 11).
Significantly, LPP 11 varies the requirements of the Residential Design Codes of Western Australia (2008) (Codes) as they relate to outbuildings. These requirements are central to this matter and are discussed in detail later in these reasons.

Proposed development

The proposed development comprises a Colorbond clad shed with an area of 121.5 square metres (13.5 metres by 9 metres) with a wall height of 3.5 metres and a ridge height of 4.46 metres.
It is proposed that the shed, located at the rear of the site, will ultimately be an outbuilding to a residence.
The applicant proposes that prior to completion of the dwelling, the shed will be used to store personal goods, construction tools and materials to be used in the construction of the dwelling. The application letter included a sketch showing that after completion of the dwelling, the shed would be used for the storage of two cars, a trailer, a boat, a fourwheel motorbike, leaving a small area described as 'storage, music and tinkering area'.

Council's decision

The Council advertised the development application and received one submission, a letter of nonobjection.
The development application was the subject of a report by a planning officer to the Council meeting on 23 June 2010, in which the officer provided three options: a refusal, an approval similar to the previous approval requiring a building licence for the dwelling before construction of the shed, and an approval where the recommended conditions effectively refused the specific application and approved a much smaller shed. As indicated earlier in these reasons, the letter to the applicant, advising of the decision, indicated that Council had made two decisions refusing the application and approving a different application. The actual decision of Council was a refusal where Council resolved as follows:
That Council refuse the Planning Application for a SINGLE HOUSE - Shed (Outbuilding) addition at lot 965, 4a Pilkington Street, Port Hedland, from W Ness of PO Box 799, Port Hedland, … as the proposal is inconsistent with the Town of Port Hedland Planning Scheme 5 as it does not support orderly and proper planning and the preservation of amenity of the Pilkington Street locality.

The issues

The parties, in their documents, variously described issues without agreeing on matters for the Tribunal to determine. The issues generally related to whether or not the outbuilding should be approved. However, the documents also contained evidence which raised the question of whether the outbuilding was capable of approval.
In examining the issues, the Tribunal, as it must, has kept in mind s 27 of the State Administrative Tribunal Act 2004 (WA) which states:
Nature of the hearing
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
The Tribunal formed the opinion that the question of 'capability of approval' was a fundamental question that needed to be addressed prior to the consideration of the merits of the proposed outbuilding.
The Tribunal raised this question with the parties at the beginning of the hearing. On this particular question, the parties were in agreement, with both supporting the argument that the proposal was capable of approval. The respondent argued that it was conventional practice for the Council to approve outbuildings without a residence on the site. The respondent stated that this question had recently been dealt with by the Tribunal in Outlook Contracting Pty Ltd and Town of Port Hedland [2009] WASAT 53 (Outlook Contracting).
Although the parties are in agreement with each other, 'capability' is an issue that must be dealt with to enable the correct and preferable decision to be made.
Therefore the following two issues that arise for determination in this review are:
1)whether the proposed outbuilding is capable of approval; and
2)whether the proposed outbuilding is consistent with the planning framework.
The Tribunal will address each issue in turn.

Whether the proposed outbuilding is capable of approval

An outbuilding is not defined in TPS 5. Failing a Scheme definition, the generally accepted definition of an outbuilding for planning purposes in Western Australia is defined in the Codes as follows: 'an enclosed nonhabitable structure that is detached from any dwelling'.
The concern of the Tribunal is that because the site does not contain an approved dwelling, the proposed structure cannot be considered an outbuilding because it is not detached from a dwelling. The proposal in this review is very similar to the matter in Outlook Contractingwhere the Tribunal considered an application for two sheds on a rural residential lot without a residence. At [48] [50] the Tribunal observed that:
How a proposed development is to be characterised under TPS 5 depends upon what has been applied for - that is, how it is proposed that the building be used, not what other uses it might potentially be used for. How then to determine what is the most appropriate characterisation of the proposed development. The zoning table of TPS 5 includes a list of uses. These can be cross-referenced to zones to determine whether the use might be allowed in a particular zone. At cl 3.2.6 of TPS 5, it states:
If the development of land for a particular purpose is not specifically mentioned in the zoning table and cannot reasonably be included in the definition of one of the development categories, the Council may determine:
(a)that the development or use is not consistent with the objectives and purpose of the particular zone or precinct and is, therefore, not permitted or
(b)by absolute majority that the proposed development may be consistent with the objective and purpose of the zone and an application for planning approval should be determined in accordance with Pt IV, including the advertising procedures of cl 4.3.
A shed used for private storage is not listed and does not readily fall within any use class of the zoning table of TPS 5. The proposed development is considered to be best described, or characterised, not as a warehouse, but as a development 'not specifically mentioned in the zoning table'.
As a use not mentioned, it becomes necessary under cl 3.2.6 of TPS 5 to determine whether the proposed development, that is, two sheds of 150 square metres each, for private storage, would be consistent with the objective and purpose of the Rural Residential zone. This is addressed in the issues to follow.
In this case, it is necessary to determine whether the proposed development of one shed of 121.5 square metres, for private storage, would be consistent with the objective of the Residential zone.
TPS 5 does not contain objectives for the Residential zone but at cl 6.2.3 it does provide that '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'. The objectives of the Codes at 1.3.1 clearly refer to housing and dwellings. The definition of a dwelling in TPS 5 refers to the 'purpose of human habitation on a permanent basis'.
The proposed use of a building to store building materials and private goods, including boats and vehicles, is obviously not a dwelling and must be considered as a use 'not specifically mentioned in the zoning table'.
The Town is aware of the problem, and in the planner's report dated 21 May 2010, to Council, the following statement was made:
A residential shed is a non defined use within the planning scheme. However, it has been Council practice to assess sheds on vacant land as a Single House Shed addition. When approving these applications it is required prior to obtaining a building licence for the proposed shed that a building licence for a Single House has been submitted and approved. In addition a condition is imposed requiring that a single dwelling is to be constructed and completed within 12 months or the shed is to be removed.
In Outlook Contracting, the Tribunal found that the proposed sheds were not consistent with the objectives of the rural residential zone. At [56] [57] the Tribunal found:
… that it is not what the sheds might be used for, but rather, what it was proposed that they would be used for that was the basis of characterisation of the use. Similarly, it is not what additional development it is said might be applied for at a later date - that is, a house - which should determine the suitability of the currently proposed use for the site. … The Tribunal has no reason to doubt that the owner will eventually apply for a house, but to date it appears from the evidence that materials and design have not been finalised, there has been no submissions to the Town and there is no timetable for when an application for a building licence might be lodged.
The definition 'Rural Residential', set out in full above refers to the 'development of land where lots and dwellings are located in a rural setting, where use of lots may include agriculture or intensive agriculture…'. An outbuilding associated with an approved house and used for the same purpose as proposed for the sheds would be an acceptable development, if of an appropriate size. The Tribunal considers, however, that the proposed use can exist independently of a residence on the site and continue to do so should circumstances dictate delay in the development of any house. The development proposed for the site does not lead, as a matter of course, to achieving the objective of the zone of having a dwelling in a rural setting. The Tribunal has formed the view, therefore, that, as provided for at cl 3.2.6 of TPS 5, the proposed development should not be permitted.

The current matter before the Tribunal is slightly different from Outlook Contracting, and just different enough to tip the balance, so that the application is capable of being approved via the discretion available in TPS 5, cl 3.2.6(b). In contrast to Outlook Contracting, part of the proposed use relates specifically to the construction of the dwelling: the storage of construction materials and equipment. In the context of a locality subject to seasonal cyclones, it is logical to build a storage facility that can become part of the future development of the site. Consistent with the findings in Outlook Contracting, the Tribunal acknowledges that 'the development proposed for the site does not lead, as a matter of course, to achieving the objective of the zone of having a dwelling'. However, the Council has developed a practice of imposing stringent planning conditions that specifically tie the proposed outbuilding to a future residence. The applicant agreed to the conditions in the previous expired approval and indicated during the hearing that he would accept the same conditions if the outbuilding, as proposed, was approved.
The differences between this case and the finding in Outlook Contracting are subtle. The Tribunal observes that since this is the second time this matter has arisen, the respondent could assist future applicants by clarifying its planning framework to ensure both clarity and consistency.
Although the Tribunal has found that the proposal is capable of being approved, the question remains whether it should be approved based on the merit of the proposal.

Whether the proposed outbuilding is consistent with the planning framework

The applicant argued that the proposal is exactly the same as an earlier proposal approved by the Council and that, were it not for unfortunate medical circumstances, the proposed outbuilding would have been constructed. Furthermore, the applicant has shown the location of a future proposed house on the application for the outbuilding. Mr Ness stated it was his intention to apply for a building licence for the dwelling in a timeframe to comply with the timetable indicated in the previous conditions.
Mr Ness argued that the proposed outbuilding would not have an adverse impact on amenity because most of the bulk of the outbuilding would be hidden from the streetscape view by the dwelling. He noted that the proposal had been advertised and that there had been no objections and one letter of support.
Finally, Mr Ness argued that the Council has consistently approved outbuildings that are larger and higher than the policy requirements. He submitted extensive examples and organised an itinerary for the parties and the Tribunal to view directly relevant examples of similar outbuildings where the Council had exercised its discretion.
Mr Long, a planning officer employed by the Council, appeared for the respondent. Mr Long presented two main arguments: one relating to noncompliance with a local planning policy and the other rebutting the applicant's examples of oversize sheds.
Mr Long argued that, since the previous approval, the Council has adopted LPP 11 which deals with regional variations to the Codes. The planner's report to Council stated (Tribunal emphasis):
The standard R Code criteria for outbuildings states in part:
6.10.1 Outbuildings
A1Outbuilding that: …
iii.collectively do not exceed 60 sq m in area or 10% in aggregate of the site area, whichever is the lesser;
iv.do not exceed a wall height of 2.4 m;
v.do not exceed a ridge height of 4.2 m.
The standard R Code criteria is considered excessively onerous and therefore LPP 11 provides for variations that better reflect Port Hedland's climate, lifestyle, built form, needs and expectations of its residents and to ensure that proper and orderly planning is maintained. [sic]
The LPP 11 criteria for outbuilding states in part:
Notwithstanding Acceptable Development Standard A1 iii v, outbuildings in the following zones that comply with the following shall be permitted:
Residential and Urban Development Zones
Collectively do not exceed 60 sq m in area of 10% in aggregate of the site area whichever is the greater;
do not exceed a wall height of 3.0 m;
do not exceed a ridge height of 4.8 m.
The current proposal does not comply with two of the … Acceptable Development Standards.
a.The proposed size of the shed (outbuilding) equates to 19% (121.5m2) of the lot area, double of what Council has endorsed in LPP 11, and
b.The wall height of the proposed shed (outbuilding) is 3.5m, 0.5m higher than what Council has endorsed in LPP11. (Emphasis added by the Tribunal to clarify varied standards)
During the hearing, Mr Long submitted evidence, providing a detailed rebuttal of relevant examples cited by Mr Ness as examples of oversized sheds. There were two directly relevant examples, and in both cases Mr Long established to the satisfaction of the Tribunal that both sheds, while larger than 60 square metres, were equal to or less than 10% of the site area. Mr Long noted that while both of the examples complied with ridge height, they both had wall heights that exceeded the standards. The Council approved the additional wall height on the basis that the applicant had provided sufficient justification for the additional wall height.
During the hearing, Mr Long conceded that in this instance there were no problems with the wall height or setbacks; the problems were the excessive size of the shed with the resultant bulk and the adverse impact on amenity.
Mr Long explained that the additional height of the proposal was consistent with other Council approvals in recognition that boat ownership is high in Port Hedland and that sheds need to be higher to store boats. However, he maintained his opposition to the size of the shed, arguing that 'the approval of large industrial type outbuildings on smaller lots will not promote proper and orderly planning'.
With reference to the change in position of Council from the previous approval to the current refusal of the same proposal, the respondent stated in a document lodged during the hearing:
Mr Ness is correct in that Council did approve[,] contrary to the Planning Departments [sic] recommendations[,] his application for the same size shed in January 2009. However, since this time and the comment made by the State Administrative Tribunal (Outlook Contracting Pty Ltd and Town of Port Hedland DR 364 of 2008),
'The Tribunal would comment that an applicant's task is not assisted by the absence of a Council policy on sheds and outbuildings. The officer report to Council of 29 July 2008 said a policy on outbuildings was being drafted. It would be in the interests of orderly planning of the district and greatly assist potential applicants if this policy were to be completed without delay.'
the Town has developed and the Council adopted a policy on sheds and outbuildings, and contrary to Mr. Ness's beliefs has been taking the policy into consideration when making decisions.
The Tribunal observes that LPP 11 is not a complete policy on outbuildings; it merely varies 'Acceptable Development Standards' and contributes nothing to an applicant's understanding of how Council might exercise discretion when an application needs to be considered under the provisions of the Performance Criteria of the Codes.
In Sweetman and Town of Cambridge [2005] WASAT 278 at [36] the Tribunal made the following observations regarding the test to be applied in assessing an application under the Codes:
The proposed development requires a significant number of variations to the Acceptable Development provisions of the Codes. This in itself is not fatal to the application as the Codes are concerned with the fundamental aspects of good design and achieving the best planning outcome through a 'performance' approach. As the former Town Planning Appeal Tribunal found, and this Tribunal agrees, where there is noncompliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather, the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective: Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4. Therefore, the focus should not be the number of variations sought or the extent to which the variations differ from those set out as Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the Codes.
The Tribunal has consistently observed that 'Acceptable Development Standards' are merely an example of compliance with Performance Criteria and that failure to comply with an 'Acceptable Development Standard' is not necessarily a problem, since the correct test is whether a proposal complies with the Performance Criteria.
The Performance Criteria for outbuildings are described in cl 6.10.1 P1 of the Codes and require 'Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties'.
The planner's report to Council included an assessment of the proposal in terms of performance criteria where it was stated:
In this instance, it has been assessed that the performance criteria is not achieved. The dimensions of the shed are of a size more often seen within an industrial area as opposed to a residential area. The width of the shed is 13.5 [metres] being almost the entire width of the lot and the area covered would be approximately 19% of the site. This added with a wall height of 3.5m and ridge height of 4.46m would result in the shed being visually prominent particularly from neighbouring properties.
Whilst it is acknowledged that the shed would be located at the rear of the lot and it is proposed to have a house between the shed and the street, the shed is still likely to protrude above a single storey house and therefore be visible from the street.
The Tribunal agrees with the respondent. The Explanatory Guidelines to the Codes (Design Element 6.10) observe that outbuildings could be regarded as buildings and made to comply with the same design standards as the main building. 'But Australia has a long tradition of backyard sheds, workshops, garages and other buildings … and these have always been regarded in a different light to the houses they serve'. While recognising that standards are changing because lots are becoming smaller, the Explanatory Guidelines support relaxed standards for outbuildings. However, there are limits to the relaxation, and the Explanatory Guidelines to the Codes explain the guiding principle as being '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; and setback sufficiently from boundaries'.
In this case, the applicant has not succeeded in demonstrating compliance with the performance criteria of the Codes. The Tribunal accepts that there may be opportunities for the applicant to comply with the performance criteria and exceed the standards set out in LPP 11. However, in this case the excess is extreme. The scale of the outbuilding is excessive in relationship to the proposed dwelling. The bulk will be excessive when viewed from neighbouring backyards and the bulk will be excessive and apparent from the street, even though it is behind the dwelling.
The Council has demonstrated a consistent interpretation of the appropriate size for outbuildings. There are opportunities for the applicant to achieve his objectives by providing a garage attached to the dwelling, in addition to a reasonable size outbuilding that meets the performance criteria of the Codes.
Therefore, the Tribunal finds that the proposed outbuilding is inconsistent with the planning framework.

Conclusion

The Tribunal has determined that the proposal is capable of being approved. However, the scale and bulk of the outbuilding are excessive in the context of the site and the locality. Therefore, the Tribunal finds that the proposed outbuilding is inconsistent with the planning framework.
It follows that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 23June 2010 to refuse development approval for an outbuilding at No 4A (Strata Lot 1 of Lot 965) Pilkington Street, Port Hedland is affirmed.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER