O'CONNOR and CITY OF ROCKINGHAM - [2006] WASAT 157

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: O'CONNOR and CITY OF ROCKINGHAM [2006] WASAT 157

MEMBER: MR M SPILLANE (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 16 JUNE 2006

FILE NO/S: DR 537 of 2005

BETWEEN: KERRY O'CONNOR
Applicant
AND
CITY OF ROCKINGHAM
Respondent

Catchwords:

Building envelope - Discretion

Legislation:

City of Rockingham Town Planning Scheme No 2, Sch 5, par 6, subparagraph (a)
State Administrative Tribunal Act 2004 (WA), s 27

Town Planning and Development Act 1928 (WA)

Result:

The application for review is dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M O'Connor
Respondent: Self-represented

Solicitors:

Applicant: N/A
Respondent: N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This application relates to a review of the respondent's decision to refuse an application to vary a building envelope.
The respondent's town planning scheme gave a discretion to vary the building envelope in particular circumstances.
In this instance, no relevant environmental evidence as required by the town planning scheme was provided. Therefore, the relevant discretion could not be exercised and, in the circumstances, no decision was made on the merits of the case.

Facts

This is an application for review that came before the Tribunal following the respondent's decision at its Ordinary Meeting on 26 July 2005 to refuse the applicant's application to vary the location of a building envelope at Lot 113 (No 5) Kirkwall Close, Warnbro.
It is agreed between the parties that the property is zoned "Special Residential" under the respondent's Town Planning Scheme No 2 (TPS 2) and that Schedule No 5 of TPS 2 headed "Specific Residential Zones - Warnbro Dunes" is directly relevant to this application.
The original application lodged with the respondent included a split building envelope which will be referred to as Option A.
During the course of discussions between the applicant and the respondent the configuration of the proposed building envelope was amended, and what was finally considered and refused by the respondent was a proposal to move the building envelope 30 metres further to the west and deleting the northern portion of the building envelope. That configuration will be referred to as Option B.
The application for review was initially filed with the Tribunal on the 8 August 2005, and by letter of 6 September 2005 the applicant submitted what was described as a compromise proposal which showed the alignment of the proposed dwelling limited to 3.5 metres west of the existing building envelope except, possibly, the roof line which, as the applicant stated, needed sensitive drafting.
Further, although the proposed dwelling would be limited to 3.5 metres of the existing building envelope, the applicant proposed the new building envelope extend up to 10 to 12 metres west of the existing building envelope to allow the inclusion of a swimming pool and garden. This compromise proposal will be referred to as Option C.
An existing building envelope is already imposed on the subject site and is identified on each of the three options A, B and C so that it may be compared with the various proposals.
The documents filed and considered by the Tribunal in respect of this application are as follows.
For the respondent:
1)The respondent's Statement of Issues, Facts and Contentions, dated 17 November 2005, together with the respondent's s 24 bundle of documents of the same date.
2)Witness statement of Mr Jeffrey R Bradbury, the Manager of Statutory Planning Services of the respondent, dated 6 January 2006.
For the applicant:
1)The application for review dated 1 August 2005 and lodged 8 August 2005;
2)Letter by the applicant dated 6 September 2005 together with attachments filed with the Tribunal on 9 September 2005.
3)Document titled Section 24 bundle – applicant's response to respondent's Statement of Issues, Facts and Contentions dated 9 December 2005.
4)Section 24 bundle of documents relied on by the applicant dated 9 December 2005.

Consideration

Hearings before the Tribunal are by way of a hearing de novo (s 27 State Administrative Tribunal Act 2004 (WA)) and the Tribunal 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. Furthermore, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. In the present case, therefore, the Tribunal stands in the shoes of the respondent in making its decision.
The Tribunal accepts that the proposed building envelope to be considered in this case is Option C, a copy of which was furnished to the Tribunal by the applicant in a letter dated 6 September 2005 and which is different to the proposed building envelope considered and refused by Council at its meeting of 26 July 2005 which was Option B.
It should also be noted that both parties' submissions and evidence to the Tribunal were directed at Option C.
Part 1 of the respondent's Statement of Planning Policy No 2.8 headed "Applications to vary the location of building envelopes" under the heading "Statement of Intent" states:
"Where local environmental conditions are considered to be significant enough to restrict the location of building development and vegetation clearing, Building Envelopes can be imposed. The landowner is bound to confine all development within the Building Envelope by virtue of a Town Planning Scheme requirement or Restrictive Covenant.
…
The location of the Building Envelopes in these various estates was the subject of extensive investigation at the time of the initial subdivision approval for each estate. The envelopes were located after considering issues associated with land degradation, the extent of any foreshore or reservation, particular on the side of landform and vegetation characteristics and the possible form residential development by a potential purchaser, and the impact of the future development on visual amenity of the locality."
The Western Australian Planning Commission also has a Statement of Planning Policy No 2.6 headed "State Coastal Planning Policy" which requires the respondent to ensure that new buildings are positioned to avoid risk of damage from coastal processes.
However, more importantly, paragraph 6 of the respondent's Sch 5 of TPS 2 states:
"Any residence and all other out buildings and effluent disposal systems should only be constructed within designated building envelopes identified at the time of subdivision. The building envelope shall be to the satisfaction of the Council and may be varied at the discretion of the Council if:
(a)Council receives advice from a qualified environmental consultant that the variation will result in an environmental benefit; and
(b)only after consultation with the owners of affected or adjoining properties."
Keeping in mind the relevant statutory instruments referred to above, the parties addressed in some detail issues such as:
•visual amenity;
•residential amenity;
•integrity of Warnbro Dunes; and
•the environment.
The comments and objections of adjoining landowners were also addressed by the parties, as was the matter of setbacks and precedents.
However, before those issues are considered, the Tribunal must first be satisfied that it can exercise the discretion to vary the building envelope as per the provisions of par 6 Sch 5 of TPS 2 which is the relevant planning instrument.
As outlined earlier, par 6 states:
"Any residence and all other outbuildings and effluent disposal systems shall only be constructed within designated building envelope identified at the time of subdivision. The building envelope shall be to the satisfaction of the Council and may be varied at the discretion of Council if:
(a)Council receives advice from a qualified environmental consultant that the variation will result in an environmental benefit; and
(b)all the after consultation with the owners of affected or adjoining properties." (Emphasis added.)
It is clear, therefore, that standing in the shoes of Council, the Tribunal, therefore, may only vary the building envelope if:
"(a)… [the Tribunal] receives advice from a qualified environmental consultant that the variation will result in an environmental benefit; (emphasis added) and
(b)only after consultation with the owners of affected or adjoining properties."
Dealing with sub-paragraph (a) of par 6, that is the advice from a qualified environmental consultant that the variation will result in an environmental benefit, one must refer to the evidence furnished.
At par 2.3 of the respondent's Statements of Issues, Facts and Contentions, the respondent stated:
"The City of Rockingham received an application seeking Planning Approval to vary the location of a Building Envelope at the subject property, by moving the Building Envelope 30 m further to the west, and deleting the northern portion of the Building Envelope." (Option B)
The applicant, in its response to par 2.3 of the respondent's "Statements of Issues, Facts and Contentions", stated:
"This fact is agreed except that the original application to Council included a split building envelope (Section 24 Applicant's Bundle Tab 15) (Option A). This was the configuration considered by Mr Goodall (Section 24 Applicant's Bundle Tab 12)."
The applicant continued:
"The split building envelope proposition was amended at Council's Planning Department's insistence to result in the application referred to and considered by Council." (Option B)
At page 4 of the applicant's letter to the Tribunal dated 6 September 2005 under the heading "Conclusion", the applicant states in support of Option C:
"We believe that, if we are put to it, we can show that on any argument there ought to be a realignment of the building envelope of Lot 113. The developers of The Bay subdivision were constrained in the design of building envelopes by the now lapsed soil conservation measure which applied to the dunes. This has resulted in an inappropriate building envelope for Lot 113.
We have considered this matter extensively and believe with good will an appropriate building envelope can be designed for Lot 113. This envelope will meet Council's policies with respect to environment and urban design as well as meeting objections from neighbours. Notwithstanding that we believe that the envelope as proposed to Council previously would meet those objective[s], we are prepared to submit a compromise proposal. (See attached plan)." (Option C)
And the applicant continued:
"This compromise proposal has the following essential elements;
a)A building envelope of something less than 1000 square metres (Council raise no objection to the proposed envelope of 1000 square metres)
b)An alignment of the proposed dwelling which is limited to 3.5 metres west of the existing building envelope (except possibly the roof line which needs sensitive drafting)
c)the limiting of the western edge of the non‑dwelling part of the building envelope to 30 metres at its closest point to the public reserve, positioning the western edge of the proposed residence at something like 38 metres from the foreshore reserve
d)The retention of existing stable slope with all its visual and environmental advantages
e)Council's policy with respect to fire will not be compromised or tested.
It should be noted from this proposal that the area of development from the western edge of the house to the western edge of the building envelope will necessarily include a swimming pool. This pool will be required as resource in the event of fire and will form integral part of our planning for the enjoyment of our property. (It is our intention not to clear native vegetation, and saturation sprinklers will be required in the event of fire).
It should also be noted that the compromise proposal includes a boat port which will also form an integral part of our enjoyment of our property.
There is also proposed a low impact access track between the boat port and the house which will not disturb existing vegetation and will not compromise the movement of wildlife."
What is clear from an examination of Options A, B and C is that the footprint that the proposed building envelope makes on the property is clearly different in each of the three proposals with Option C, the option before the Tribunal, being overall the one closest to the original or existing building envelope on the site.
The letter dated 15 April 2005 from Mr Goodall, the Environmental Conservation Consultant for the applicant, and on which the applicant relies to show as is required by sub-paragraph (a) of par 6 of Sch 5 of TPS 2 that "the variation will result in an environmental benefit" was, on the evidence of the applicant (par 2.3 of the applicant's response to the respondent's Statement of Issues, Facts and Contentions), based entirely on the original application to Council which was a split building envelope (Option A).
Indeed, this is borne out by the date of Mr Goodall's letter as opposed to the much later dates Option B and Option C were presented for consideration.
In respect of Option A, Mr Goodall, in his letter dated 15 April 2005, states:
"This information is attached to Plan A, the original Building Envelope and Plan B, the proposed Building Envelope [Option A]."
He further states:
"In general, I don't agree with westerly movement of building envelopes in the Bay development, but in this case, the environmental benefits to the site were noted."
Mr Goodall then goes on to briefly assess the proposed changes, and finishes by stating:
"My recommendation on the proposed Alteration to Building Envelope Lot 113, The Bay (Stage Five) is that Council give their approval."
There is no evidence before the Tribunal that Mr Goodall ever considered Option B, or indeed more importantly, Option C, and his comments in his letter dated 15 April 2005 refer only to his consideration of Option A.
Because of the clear difference of the building envelopes between Options A, B and C, the Tribunal cannot safely take Mr Goodall's comments based solely on Option A and assume they would apply equally or with greater effect to Option C.
Therefore, on the basis that the building envelope may only be varied if the Council, or in this case the Tribunal, receives advice from a qualified environment consultant that the variation will result in an environmental benefit and as Mr Goodall's evidence, which refers only to Option A, is the only evidence before the Tribunal from a qualified environmental consultant, the Tribunal has no evidence that the variation proposed in Option C would result in an environmental benefit and that the Tribunal can therefore exercise the necessary discretion.
That being the case, the Tribunal is not in a position to exercise the discretion contained in par 6 of Sch 5 of TPS 2 and the application to review the respondent's decision must be refused.
In the circumstances, there is no need to consider any of the other matters which might normally be taken into account.

Order

The application for review is dismissed.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER