O'REILLY and SHIRE OF SERPENTINE-JARRAHDALE
[2023] WASAT 2
•16 JANUARY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: O'REILLY and SHIRE OF SERPENTINE-JARRAHDALE [2023] WASAT 2
MEMBER: MR R POVEY, MEMBER
HEARD: 2 NOVEMBER 2022
DELIVERED : 16 JANUARY 2023
FILE NO/S: DR 70 of 2022
BETWEEN: ELLAINE O'REILLY
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Development application - Outbuilding - Shed - Residential design codes - Amenity - Desired future character - Compatibility of proposed development with its context - Streetscape - Orderly and proper planning
Legislation:
Draft Shire of Serpentine-Jarrahdale Local Planning Scheme No 3
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 66, cl 67(2), cl 74(1), cl 72(2)
Planning and Development Act 2005 (WA), s 241(1)(a), s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.3.4, cl 5.4.2, cl 7.1
State Administrative Tribunal Act 2004 (WA), s 18, s 24, s 27, s 27(1), s 27(2), s 31(1), s 32(1), s 32(2)(a)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 2.5.2(c), cl 2.4, cl 2.5, cl 2.5.1, cl 2.5.2, cl 2.5.5, cl 2.5.5(b), cl 5.4(c), cl 5.4.3, P3, cl 7.1, cl 7.3.1, cl 7.3.1(b)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr A Nair (Planning Advocate) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Joseph and City of Nedlands [2022] WASAT 13
Loxton & Anor and City of Fremantle [2015] WASAT 46
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Sweetland and Town of Cambridge [2005] WASAT 278
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Thomas and Town of Cambridge [2013] WASAT 206
Warden and Town of Mosman Park [2019] WASAT 88
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This decision deals with an application for review made under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for the review of the Shire of Serpentine-Jarrahdale's (respondent or Shire) decision to refuse to grant development approval for an outbuilding (shed) (proposed development) at No 29 (Lot 26) Butcher Road, Darling Downs (subject site). Ellaine O'Reilly (applicant) seeks development approval for the proposed development.
In these reasons, I will firstly describe the Tribunal's review jurisdiction and briefly address the final hearing (hearing) and aspects of the evidence. Then I will describe the proposed development, the subject site and locality, the planning framework and summarise the procedural history. Finally, I will set out, and then determine, the three issues that arise in this proceeding.
For the reasons given below, I have determined that 'the correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to approve the proposed development, subject to conditions.
The Tribunal's review jurisdiction
The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94 at [27]-[30] and, for completeness, is set out below:[1]
27By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[2]
28The Tribunal is to review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[3]
29The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[4] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[5]
30The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[6] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[7] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
The hearing and aspects of the evidence
[1] M Barton, M Povey and SSM Curry.
[2] Section 18, SAT Act.
[3] Section 27, SAT Act.
[4] Section 32(2)(a), SAT Act.
[5] Section 32(1), SAT Act
[6] Section 27(1), SAT Act.
[7] Section 32(2)(b), SAT Act.
Each party filed and gave to the other party a Statement of Issues, Facts and Contentions (SIFC). The respondent also filed a bundle of documents under s 24 of the SAT Act. The applicant also filed documents with the Tribunal.
The hearing was conducted on 2 November 2022. At the hearing I heard evidence from a town planning expert, Mr Ryan Fleming, a town planning officer of the Shire, called on behalf of the respondent. Mr Fleming also filed a witness statement with the Tribunal. Mr Fleming obtained a bachelor's degree in urban and regional planning in 2017 and has been employed by the Shire as a statutory planning officer since 2019. At the commencement of the hearing, together with the parties and the town planning expert, I attended a view of the subject site and the surrounds.
As I will come to explain, there are certain aspects of Mr Fleming's written and oral evidence I find should not be given significant weight, and as result are not persuasive when arriving at the correct and preferable decision in this case. These aspects are identified in these reasons at [8]-[10], [29]-[30], [58]-[59], [61]-[62], [86]-[88] and [104][105].
Mr Fleming concedes he does not address a key aspect of the applicable planning framework[8] in his assessment of the proposed development and as a result, he applies local planning policy, LPP 4.19 - Outbuildings, Shed, Garden Sheds and Sea Containers (LPP 4.19) inappropriately, in my view.[9] Also, many of Mr Fleming's responses to questions asked of him at the hearing by the planning advocate for the respondent, Mr Nair, and by the applicant, were generally, I find, conveyed in a manner that represented the Shire's position on the topic as opposed to an independent, reasoned and objective opinion as a town planner.
[8] See [29].
[9] See [38]-[39].
A similar circumstance arose in Joseph and City of Nedlands [2022] WASAT 13 (Joseph) where the evidence of the respondent's expert witness did not consider a key aspect of the applicable planning framework. In that case, the applicant also did not provide evidence at the hearing. In Joseph, at [86], the Tribunal[10] was critical of the expert witness because the reasoning for not applying the specific and relevant local planning policy measure, in that case, was not explained.
[10] M Povey.
More generally, the importance of reasoning in the evidence of an expert witness is highlighted in Warden and Town of Mosman Park [2019] WASAT 88 at [79] where the Tribunal[11] observed:
… The Tribunal considers both experts were trying to be helpful to the Tribunal, but nonetheless, it is not helpful to have statements of conclusions reached by an expert without a sufficiently thorough explanation of the process or methodology used to allow the Tribunal to understand how the conclusions were reached. It is not for an expert to answer the ultimate question before the Tribunal, it is for the Tribunal to do so. If the Tribunal cannot understand the approach taken and the reasoning followed, it cannot analyse and evaluate those things in order to reach its ultimate determination[.]
The proposed development
[11] SM Eddy and M P De Villiers.
The proposed development is for an outbuilding (shed) located at the rear of the subject site. The proposed development has a floor area of 272m2 and is 16 metres long (east-west) by 17 metres wide (northsouth), with a wall height of 4.8 metres and a roof ridge height of 6.21 metres.[12] The proposed development is setback 6 metres from the northern (side) boundary, 19 metres from the southern (side) boundary and 6 metres from the western (rear) boundary of the subject site.
[12] Respondent's SIFC, para 3.11, Exhibit 2.
The proposed development is set back 73 metres from the street boundary with Butcher Road (eastern boundary)[13] and will be connected to the existing driveway by a 3 metre wide access driveway, set 2.3 metres off the northern boundary of the subject site.
[13] Note: The respondent had assessed the setback as 77 metres. However, the correct setback of 73 metres from the Butcher Road boundary was confirmed by the parties at the hearing, ts 66, 2 November 2022 and is reflected in Exhibit 14.
The proposed development also involves the planting of vegetative screening. The vegetative screening of 'Cherry Bomb Lilly Pilly' is proposed to grow to 5 metres high to form a hedge along each boundary of the subject site.
A rainwater tank is proposed. However, the respondent concedes this does not require development approval because it is located within the designated building envelope for the subject site.[14]
[14] ts 74, 2 November 2022.
It is uncontroversial the proposed development does not meet the requirements of Table 1 of LPP 4.19.[15] Table 1 sets out acceptable development standards, detailing five aspects. Mr Fleming provides an assessment of the proposed development against the applicable acceptable development standards in Table 1, which I accept, as follows:[16]
1)A floor area less than or equal to 150m2 is permitted. The proposed development has a floor area of 272m2 and therefore it does not meet this policy requirement.
2)A wall height of up to 4.2 metres is permitted. The proposed development has a wall height of 4.8 metres and therefore it does not meet this policy requirement.
3)A ridge height of up to 5 metres is permitted. The proposed development has a ridge height of 6.21 metres and therefore it does not meet this policy requirement.
4)A 20 metre minimum street setback is required. The proposed development has a street setback of 73 metres which meets this policy requirement.[17]
5)A 10 metre minimum lot boundary setback is required. The proposed development has a setback of 6 metres from the west and north boundaries which does not meet this policy requirement. The lot boundary setback from the south boundary meets this policy requirement.
[15] Respondent's s 24 Bundle of Documents, pages 701-702, Exhibit 3.
[16] Witness Statement of Ryan Fleming, para 16, Exhibit 4.
[17] Mr Fleming's witness statement indicates a setback of 77 metres, however at the hearing Mr Fleming accepts the correct setback is 73 metres, ts 66, 2 November 2022.
As the proposed development does not meet the acceptable development requirements of Table 1, it is required to be assessed against the relevant design principle (cl 5.4.3, P3) of State Planning Policy 7.3 - Residential Design Codes Volume 1 (R-Codes).[18]
Subject site and the locality
Subject site
[18] See [24]-[28].
The subject site is more particularly known as Lot 26 on Diagram 402146 being the whole of the land contained on Certificate of Title Volume 2863 and Folio 92 and is approximately 4013m2 in area. The subject site is rectangular in shape and has a front (eastern) boundary to Butcher Road and its rear (western) boundary abuts a Rail Reserve. These boundaries have a dimension of approximately 42.5 metres. The north and south boundaries have a dimension of approximately 94 metres. The adjoining lots to the north and south have similar dimensions.
The subject site is developed with a single storey single house (facing Butcher Road), rainwater tanks and a chicken coop.[19]
[19] The respondent says the chicken coop is unauthorised (Respondent's SIFC, para 2.5, Exhibit 2). However, this has no bearing on this application for review.
The subject site is zoned 'Rural Living A' with a density coding of 'R2' under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2). The subject site is designated 'Rural Residential' under draft Shire of Serpentine-Jarrahdale Local Planning Scheme No 3 (LPS 3).
The locality
The extent of the locality is identified by Mr Fleming and includes the Rural Living A zoned properties located on Butcher Road and in Aqaunita Rise.[20] Applying the principles outlined in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [42], I accept the extent of the relevant locality is as identified by Mr Fleming. The locality also includes:
a)A Rail Reserve, at the rear (western) boundary of the subject site, and Thomas Road is to the south (at the intersection of Butcher Road). Currently, civil (bridge) works are being undertaken on Thomas Road to provide grade separation for the rail line and the intersection of Butcher Road. Works are planned in the Rail Reserve for the Armadale-Byford METRONET project, however the extent of these works, on the evidence before me, is currently unknown.[21]
b)An outbuilding at Lot 201 Aquanita Rise (opposite the front of the subject site to the east), which has its longer side elevation facing Butcher Road. Mr Fleming identifies this outbuilding is setback two to three metres from Butcher Road[22] and with a floor area of 180m2, a wall height 4.2 metres and a ridge height of 5.26 metres.[23] There is no screening to this outbuilding.[24]
[20] Witness Statement of Ryan Fleming, Annexure 1, Exhibit 4.
[21] ts 62, 2 November 2022 and Applicant's SIFC, para 9.8, Exhibit 7.
[22] ts 69, 2 November 2022.
[23] Witness Statement of Ryan Fleming, Annexure 2, Exhibit 4.
[24] Witness Statement of Ryan Fleming, Figure 6, Exhibit 4.
The character of the locality, including desired future character, is considered later in these reasons.[25]
Planning framework
[25] See 'Character of the locality' at [75]-[78] and 'Desired future character' at [79]-[85].
The relevant planning framework, which I have considered in determining the application includes:
a)TPS 2 which incorporates the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) and includes the relevant matters under cl 67(2) of Sch 2;[26]
b)Draft LPS 3;
c)R-Codes;
d)State Planning Policy 5.4 - Road and Rail Noise (SPP 5.4); and
e)LPP 4.19.
[26] Clause 67(2) matters are identified and considered at [110]-[125].
Additionally, pursuant to s 241(1)(a) of the PD Act, the Tribunal is to have due regard to relevant planning considerations, including any State planning policy, which may affect the subject matter of the application. In this case, the R-Codes is a relevant State planning policy and as the subject site abuts the Rail Reserve, SPP 5.4 is also relevant.
The inter-relationship of the provisions of the R-Codes and the applicable local planning framework, TPS 2 and LPP 4.19.
It is uncontroversial the development is not exempt from development approval under TPS 2 because it does not meet requirements set out in Table 1 of LPP 4.19. Clause 5.3.4 of TPS 2 provides as follows:[27]
Unless otherwise provided for in Clause 5.4 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.
[27] Respondent's s 24 Bundle of Documents, page 123, Exhibit 3.
The 'Residential Planning Codes' referred to in cl 5.3.4 are the RCodes and Mr Fleming accepts they are applicable in this case.[28] Further, cl 5.4.2 a) of TPS 2 is applicable to the Rural Living A zone and provides:[29]
Where no Residential Density Code is depicted on the Scheme Map, residential development shall be in accordance with the R2 Density code for the Special Rural, Rural Living A, Rural Living B, Farmlet and Rural.
[28] Witness Statement of Ryan Fleming, para 6, Exhibit 4; Respondent's SIFC, para 7.1.
[29] Respondent's s 24 Bundle of Documents, page 123, Exhibit 3.
The relevant objective of the R-Codes is set out in cl 5.4(c) as follows:[30]
To maintain the amenity of streetscapes and views along the street by ensuring that associated outbuildings and other fixtures attached to buildings do not detract from the streetscape and are not visually intrusive to neighbouring properties or adjoining public spaces.
[30] R-Codes, page 37, Exhibit 13.
Outbuildings are defined in the R-Codes as:[31]
An enclosed non-habitable structure that is detached from any dwelling.
[31] R-Codes, page 50, Exhibit 13.
The design principle set out in cl 5.4.3, P3, of the R-Codes is applicable to the assessment of the proposed development:[32]
Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
[32] R-Codes, page 39, Exhibit 13. The respondent identifies this design principle applies to the proposed development in the Respondent's SIFC, para, 7.1, Exhibit 2.
However, Mr Fleming does not address the relevant design principle of the R-Codes in his written evidence, and he explains this in oral evidence:[33]
… So it looks to me as though I didn't potentially put that in there. So I think I've - in terms of assessing outbuildings, particularly within the shire and rural living A zone, there's beyond the R-Codes local planning policy 4.19 grants, I guess, specific considerations and development standards for outbuildings in those larger properties. That the residential design codes perhaps don't account for the larger sized properties, so that's sort of why I've refined my evidence more to considering the local planning policy 4.19. And more broadly the deemed provisions clause 67[.]
[33] ts 35, 2 November 2022.
This omission casts significant doubt on the evidence of Mr Fleming. I do not accept the R-Codes is in some way not applicable as they 'perhaps don't account for larger sized properties' because cl 5.3.4 of TPS 2 requires the proposed development shall conform with the RCodes. This case plainly requires an assessment of the proposed development against the relevant provisions of the R-Codes, which includes the design principle at cl 5.4.3, P3, and Mr Fleming concedes he does not address this.
Further, cl 2.4 of the R-Codes deals with judging the merits of proposals and states:[34]
Where a proposal does not meet deemed-to-comply provision(s) of the R-Codes Volume 1 and addresses design principle(s), the decisionmaker is required to exercise judgement to determine the proposal.
Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).
[34] Respondent's s 24 Bundle of Documents, Item 9, page 6 and ts 14, 17 October 2022, Exhibit 4.
Clause 2.5 of the R-Codes deals with the exercise of judgement. The relevant parts are as follows:
2.5.1
Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes Volume 1.
The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provision(s).
2.5.2
In making a determination on the suitability of a proposal, the decisionmaker shall exercise its judgement, having regard to the following:
(a)any relevant purpose, objectives and provisions of the scheme;
(b)any relevant objectives and provisions of the R-Codes Volume 1;
(c)a provision of a local planning policy adopted by the decision-maker consistent with and pursuant to the R-Codes Volume 1; and
(d)orderly and proper planning.
Clause 7.1 of the R-Codes provides that the decision-maker shall not amend or modify the R-Codes Volume 1, to provide for a greater or lesser requirement unless it relates to matters expressly permitted under the R-Codes Volume 1 to be amended or modified.[35] Clause 7.3.1 of the R-Codes allows local planning policies (among other things) to contain provisions that amend or replace the deemed-to-comply provisions relating to outbuildings and requires that amendments or replacements to the deemed-to-comply provisions are to be consistent with the design principles. Mr Fleming says, and I accept, the deemedto-comply provisions of the R-Codes at cl 5.4.3 have been replaced by Table 1 of LPP 4.19.[36] However, because the proposed development does not meet the deemed-to-comply provisions, Table 1 is not directly relevant in this review, and the development is required to be assessed against the design principle in cl 5.4.3, P3, of the RCodes.
[35] Respondent's s 24 Bundle of Documents, Item 9, page 46, Exhibit 4.
[36] ts 35-36, 2 November 2022.
Clause 7.3.1(b) of the R-Codes allows a local planning policy to contain provisions that:[37]
augment the R-Codes Volume 1 by providing local housing objectives to guide judgements about the merits of proposals for any aspect of residential development covered by this volume that does not meet the requirements or is not provided for, under the R-Codes Volume 1.
[37] Respondent's s 24 Bundle of Documents, Item 9, page 46, Exhibit 4.
LPP 4.19 does not contain local housing objectives that augments the R-Codes design principle in cl 5.4.3. This design principle is therefore applicable in the assessment of the proposed development.
LPP 4.19, to which I am to have due regard pursuant to cl 67(2)(g) of the Deemed Provisions,[38] and which applies to all outbuildings, sheds, garden sheds and sea containers in the Shire, contains two policy objectives:[39]
•Ensure that the siting, design and scale of outbuildings/sheds are site responsive and respect the character of the locality.
•Ensure that outbuildings/sheds do not have a detrimental visual impact which adversely affects the amenity of the surrounding area or that of adjoining landowners.
[38] Regard is also given to LPP 4.19, pursuant to cl 2.5.2(c) of the R-Codes, see [32].
[39] Respondent's s 24 Bundle of Documents, page 700, Exhibit 3.
Clause 2 of LPP 4.19 contains the following matters for consideration:[40]
[40] Respondent's s 24 Bundle of Documents, page 704-705, Exhibit 3.
…
2.2The Shire will consider the following matters in respect of an application for development approval:
2.2.1Whether a size variation is required to satisfy specific needs of the owner/applicant;
2.2.2Whether a size variation is excessive, considering the character of the surrounding area;
2.2.3Whether a size variation would reduce the amount of open space or outdoor living area required in accordance with the R-Codes.
2.2.4Whether the development is sited behind the front setback line for the dwelling, visible from the street or neighbouring properties;
2.2.5Whether non-reflective materials are proposed on the building;
2.2.6Whether adequate screening exists, or has been proposed, from the road and/or neighbouring properties; and
2.2.6Consideration of comments from the affected adjoining landowners[.][41]
[41] It appears this clause should be numbered 2.2.7.
I observe that cl 2.2.1, cl 2.2.2 and cl 2.2.3 are, in my view, not consistent with cl 2.5.1 of the R-Codes because they are each expressed in terms which require assessment of a 'size variation', apparently against the deemed-to-comply requirements in Table 1 of LPP 4.19. The design principle in cl 5.4.3 of the R-Codes, which is applicable in this case, does not specify size criteria, therefore considering a 'size variation' is of no assistance when applying the design principle.
Also, as identified earlier at [32], cl 2.5.1 of the R-Codes, requires a decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provisions. In undertaking a design principles assessment what is not appropriate, as the Tribunal has found on numerous previous occasions, is consideration of how far the development departs from the deemed-to-comply requirements.[42] Further, although I am required to consider local planning policy provisions (mentioned earlier in cl 2.5.2 of the R-Codes),[43] cl 2.5.5 of the R-Codes says that a local planning policy will only be relevant in the exercise of judgment where it is (among other things) consistent with the design principles of the R-Codes.[44] Clause 2.2.1, cl 2.2.2 and cl 2.2.3 of LPP 4.19, in my view, in this case, which requires assessment against the relevant design principle of the R-Codes, are not.
The existing building envelope
[42] See for example Sweetland and Town of Cambridge [2005] WASAT 278 at [36]; Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 at [30]; Thomas and Town of Cambridge [2013] WASAT 206 and Loxton & Anor and City of Fremantle [2015] WASAT 46 at [29].
[43] See [32].
[44] R-Codes cl 2.5.5 (b), page 7, Exhibit 13.
Another relevant consideration is the existing building envelope for the subject site. In the Rural Living A zone, applicable to the subject site, TPS 2 provides for the establishment of building envelopes, pursuant to cl 5.12.9 c):[45]
a building envelope with an area not exceeding 1000 square metres in area shall be defined in a position to be agreed by the Council and no building envelope shall be closer than 20 metres to the primary street boundary or closer than 10 metres to any other lot boundary[.]
[45] Respondent's s 24 Bundle of Documents, page 131, Exhibit 3.
Further, cl 5.12.9 d) provides:
no building shall be constructed on a lot other than within the approved building envelope without the written approval of the Council[.]
The existing building envelope for the subject site provides for a setback from the primary street boundary (Butcher Road) of 15 metres and a setback from the rear boundary of 20 metres. The side setbacks of the building envelope are not dimensioned on the approved building envelope plan.[46] However, in evidence provided by the respondent at the hearing, the building envelope is dimensioned with a setback of 6 metres from the side (north and south) boundaries of the subject site.[47] It is uncontroversial, the proposed development (having a 6 metre rear setback) is sited mostly outside of the existing building envelope. The impact of this on amenity is considered under issue 1 at [60]-[61].
Summary of procedural history
[46] Respondent's s 24 Bundle of Documents, page 699, Exhibit 3.
[47] Proposal with building envelope, Exhibit 14.
The following events have occurred with this application for review.
On 10 September 2021, the applicant applied for development approval for an outbuilding of 288m2 in area and measuring 18 metres long (east-west) by 16 metres wide (north-south) with a wall height of 5 metres and a roof ridge height of 6.56 metres (original application).[48]
[48] Respondent's SIFC, para's 3.1-3.2, Exhibit 2. Note: The Respondent's SIFC identifies the date the original application was made as 13 September 2022, which is incorrect.
The original application was advertised and referred to the Public Transport Authority, due to the subject site abutting the Rail Reserve. At the conclusion of advertising, two submissions which did not object to the proposal were received and the Public Transport Authority advised they have no objection.[49]
[49] Respondent's SIFC, paras 3.4-3.5, Exhibit 2.
On 29 March 2022, the respondent refused the original application and on 29 April 2022 the applicant lodged an application for review with the Tribunal. Following mediation, which resulted in the applicant providing amended plans (proposed development), the respondent was invited by the Tribunal, pursuant to s 31(1) of the SAT Act, to reconsider its decision.
On 3 August 2022, the respondent refused the proposed development for two reasons:[50]
(a)The outbuilding by way of its siting, scale and appearance would be incompatible with development in the locality and adversely impact the character and amenity of the locality.
(b)The outbuilding by way of its siting, scale and appearance would have an adverse impact on the streetscape and neighbouring properties.
[50] Respondent's SIFC, para 3.12, Exhibit 2.
The amended plans are now the subject of consideration and determination in this review.
Issues for determination
Three issues for determination by the Tribunal have been identified in this proceeding.
1)Will the proposed development, by means of its scale and setback to the lot boundary, impact on the amenity of the adjoining neighbours?
2)Will the proposed development, by means of its scale, design and setback to the lot boundary, be out of harmony with the established rural residential character and amenity of the locality?
3)Will the proposed development, by means of its scale and visual prominence, impact upon the streetscape?
Each issue requires consideration of the impact of the proposed development on various aspects of amenity in the locality. Before I consider the issues for determination, I will outline the approach to evaluating amenity.
Evaluating amenity
The impact of the proposed development on the amenity of the locality is at the heart of the issues in this proceeding. Amenity is defined in cl 1 of the Deemed Provisions as follows:
means all those factors which combine to form the character of an area and include the present and likely future amenity.
As the Tribunal[51] has previously observed, the case authorities on evaluating amenity are well-known and settled. For many years the leading authority was Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) where the former Town Planning Appeal Tribunal (at 304) set out a three-step test in terms of evaluating amenity. The relevant steps are:
1)establish the existing amenity in an objective sense;
2)evaluate the manner in which the proposed development will affect the existing amenity; and
3)assess the degree of impact on the locality.
[51] M Willey (as he then was) in John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [76].
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] (Sunbay) Barker J generally endorsed the approach to amenity set out in Tempora with one exception as to the assessment of existing amenity, which his Honour identified can be informed by lay residents in addition to expert witnesses[52] and confirmed that an evaluation of amenity should take account of future amenity.[53] The need to consider future amenity is expressly recognised in the definition of amenity.
[52] See Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48].
[53] Sunbay at [22].
I will now address the three issues for determination in turn.
Issue 1 - will the proposed development, by means of its scale and setback to the lot boundary, impact on the amenity of the adjoining neighbours?
The respondent contends that approval of the proposed development within close proximity to a lot boundary and the neighbouring residence would be both visually prominent, despite the proposed vegetative screening, and at odds with the preservation of the existing amenity.[54] Specifically, the respondent contends, that while no objection was received from the neighbour (to the north at Lot 27 Butcher Road) the setback and scale, having regard to the 16 metre wall length and 6.21 metre overall height, would appear visually intrusive and overbearing on the outdoor space of the neighbouring property, and contends this is inconsistent with the objectives of LPP 4.19.
[54] Respondent's SIFC, para 9.3, Exhibit 3.
In issue 1, I will consider, in turn, the impact of the proposed development on the amenity of the adjoining neighbour, the location outside of the existing building envelope, the relevant part of the design principle in cl 5.4.3 of the R-Codes and the submissions received during advertising.
Impact on the amenity of the adjoining neighbour
When considering the development of outbuildings in this locality, Mr Fleming says their impacts should be moderated,[55] to ensure the visual impact they impose on adjoining properties is mitigated.[56] He asserts the proposed development 'varies significantly from the acceptable standards' and that 'these acceptable standards inform the expectations of outbuilding development in the locality'.[57] Mr Fleming says 'therefore, I consider the accumulative variations proposed to the acceptable standards for outbuildings in LPP 4.19 and the location of the [proposed development] outside the building envelope would result in an adverse impact to the amenity of the adjoining property to the north'.[58] Mr Fleming asserts he has 'no doubt that from the perspective of the neighbour's property the [proposed development] would present as visually intrusive and dominant'.[59]
[55] See [87] for what Mr Fleming means by 'moderated'.
[56] Witness Statement of Ryan Fleming, para 13, Exhibit 4.
[57] Witness Statement of Ryan Fleming, para 17, Exhibit 4.
[58] Witness Statement of Ryan Fleming, para 26, Exhibit 4.
[59] Witness Statement of Ryan Fleming, para 28, Exhibit 4.
However, when asked how he would undertake an assessment of the visual impact of a proposed development, Mr Fleming says he would look at the habitable rooms of the neighbouring property and the outdoor living areas.[60] Mr Fleming concedes he did not visit the adjoining property to the north (Lot 27 Butcher Road) or the rooms of the single dwelling at this site to undertake his assessment and inform his opinion.[61] His response also indicates that to form his opinion, he relies on an assessment conducted by another officer of the Shire.[62] Under cross-examination by the applicant, Mr Fleming appeared unsure of the layout of this dwelling, including the location of the outdoor living area under the roof of the dwelling. He concedes the neighbour's views of the proposed development are likely to be filtered by the existing ornamental pear trees on that site and that it will not obstruct the neighbour's views to the west which includes the pastural land located beyond the rail line.[63]
[60] ts 41, 2 November 2022.
[61] ts 41, 2 November 2022.
[62] ts 41, 2 November 2022.
[63] ts 46, 2 November 2022.
Further, Mr Fleming in his written evidence says 'I consider that due to the bulk and scale of the [proposed] development, the proposed vegetation screening would be insufficient to mitigate the adverse visual impact caused by this outbuilding'.[64] However, in oral evidence, Mr Fleming accepts it is a good thing vegetative screening is proposed and he concedes the screening would be effective, but maintains the overall bulk and height of the proposed development 'still presents some issues'.[65] When asked what parts of the proposed development will be visible from the neighbouring property (Lot 27 Butcher Road) when the vegetative screen is established, Mr Fleming concedes only the tip of the roof is liking to be visible and the 'vast majority' of the proposed development will be screened.[66]
Location outside of the existing building envelope
[64] Witness Statement of Ryan Fleming, para 30, Exhibit 4.
[65] ts 43, 2 November 2022.
[66] ts 44, 2 November 2022.
Mr Fleming states the proposed development is located mostly outside of the existing building envelope, which I accept informs an expectation of where buildings will be located on individual lots in this locality and is relevant when considering issues such as amenity and character. He then says that because of the location being mostly outside of the building envelope and the fact the proposed development significantly varies from the acceptable standards in LPP 4.19 this leads him to conclude the proposed development is not in harmony, nor consistent with the expected character and amenity of the locality.[67]
[67] Witness Statement of Ryan Fleming, para 49, Exhibit 4.
However, Mr Fleming's evidence does not explain, in my view, what the impact of the proposed development being mostly outside of the building envelope is. In this case, given the presence of the Rail Reserve directly at the rear (adjacent to the area outside of the building envelope where the proposed development is sited), the amenity impact identified is on the current open view from the rear of Lot 27 Butcher Road across the rear of the subject site. I do not accept this view is not capable of change through the planting of vegetation, as is proposed.[68]
Consideration against R-Codes cl 5.4.3
[68] The vegetative screen is considered further at [89]-[90].
When considering issue 1, Mr Fleming in his written and oral evidence, refers numerous times to the fact the proposed development exceeds the acceptable standards of LPP 4.19.[69] However, what is lacking in Mr Fleming's evidence is an assessment of the proposed development against the relevant design principle (cl 5.4.3, P3) of the R-Codes which, as set out earlier,[70] is the provision the proposed development must satisfy. In relation to this issue, the RCodes design principle requires that the proposed development does not detract from the visual amenity of neighbouring properties.
[69] See Witness Statement of Ryan Fleming, para 26, Exhibit 4; ts 41, 45, 48 and 53, 22 November 2022.
[70] See [28].
Mr Fleming's oral evidence, which I accept, is that, with the vegetative screen in place, all that will be visible of the proposed development from the neighbouring property (Lot 27 Butcher Road, which the respondent identifies as their concern), is the tip of the ridge of the roof and that most of the proposed development will be screened.[71]
[71] ts 44, 2 November 2022.
Further, while I accept the respondent's submission that there is currently an open landscape character observed from the rear outdoor space of Lot 27 Butcher Road towards the subject site,[72] the oral evidence of Mr Fleming is that there is nothing in the local planning framework to prevent the planting of vegetative screening as he accepts other properties in the locality have done.[73] I consider the current open landscape character at the rear of the subject site is capable of change as a result of the planting of vegetation, as is proposed. Mr Fleming indicates this more consistent with the vegetated landscape character found in the eastern area of the locality,[74] which includes examples of similar vegetative screening that were observed during the view.[75]
[72] ts 18, 2 November 2022.
[73] ts 72-73, 2 November 2022.
[74] ts 73, 2 November 2022.
[75] ts 26, 2 November 2022.
Based on the evidence before me, I consider that the proposed development, which includes vegetative screening, does not detract from the visual amenity of neighbouring properties and therefore satisfies this part of cl 5.4.3 of the R-Codes. Additionally, the second objective of LPP 4.19[76] specifically requires consideration of the visual impact on adjoining landowners and, on the evidence before me, I consider the impact acceptable.
Submissions received during advertising
[76] Outlined earlier at [36].
A further relevant consideration[77] is the fact no objections were received in the two submissions received (including, as the respondent identifies, no objection from the neighbour at Lot 27 Butcher Road)[78] when the original application was advertised. The respondent did not readvertise the proposed development because it considered it would have less of an impact on neighbouring properties than the original application.[79]
Findings - Issue 1
[77] Under cl 67(2)(y) of the Deemed Provisions and under cl 2.2.6 [sic] of LPP 4.19.
[78] Respondent's SIFC, para 9.7, Exhibit 2.
[79] Respondent's s 24 Bundle of Documents, page 77, Exhibit 3.
In respect to issue 1, I find the impact of the proposed development on the amenity of adjoining neighbours is acceptable, considering its scale and setback to lot boundaries for five reasons.
First, the proposed development will be screened from view from adjoining neighbours by a vegetative screen. This screen, which is proposed to grow to 5 metres high, once established will screen most of the proposed development. As such, the proposed development will not detract from the visual amenity of neighbouring properties.
Second, the impact of the proposed development to the neighbouring single dwelling to the north at Lot 27 Butcher Road is limited, because this dwelling does not immediately abut the proposed development (which is located at the rear of the subject site), and views of the proposed development will be filtered by existing vegetation on Lot 27 Butcher Road (in addition to the vegetative screen on the subject site).
Third, it is reasonable for the existing open views, which extend from the rear outdoor area at Lot 27 Butcher Road across the subject site to be altered by the vegetative screening (as proposed) because the planting of vegetation is not subject to planning control in the local planning framework.
Fourth, while the proposed development is located mostly outside of the approved building envelope for the subject site, the intrusion is to the rear and abuts the Rail Reserve and, on the evidence before me, this intrusion does not have a detrimental amenity impact on neighbouring properties. Additionally, the side setback of the proposed development is 6 metres, which is consistent with the side setback of the existing building envelope for the subject site.
Fifth, two submissions of no objection were received when the original application was advertised, and this is a consideration under cl 67(2)(y) of the Deemed Provisions and under LPP 4.19.[80]
Issue 2 - will the proposed development, by means of its scale, design and setback to the lot boundary, be out of harmony with the established rural residential character and amenity of the locality?
[80] At cl 2.2.6 (it is noted this appears it should be cl 2.2.7), Respondent's s 24 Bundle of Documents, page 704, Exhibit 3.
The respondent contends the siting and scale of the proposed development is incompatible with existing development in the locality because the locality is characterised by residential development in a rural setting and includes single dwellings with subservient 'rural residential' outbuildings located towards the rear of their lots.[81] The respondent further contends that approval of the proposed development would diminish the 'open' character of the locality and be at odds with the moderately sized developments in the locality and be detrimental to the amenity of the locality.[82]
[81] Respondent's SIFC, para 9.10, Exhibit 2.
[82] Respondent's SIFC, para 9.11, Exhibit 2.
In issue 2 I will consider, in turn, the character of the locality including the desired future character (including impacts of the Armadale-Byford METRONET project) and consider the visual impact of the proposed development and the vegetative screening. I will also consider noise as an amenity consideration in this case.
Character of the locality
In his witness statement, Mr Fleming provides an assessment of the character of the locality.[83] This relates to the visual character experienced in the locality. Mr Fleming says the locality can be divided into two distinct character areas, and I accept this is the case. The first area he describes as the eastern properties on Aquanita Rise and on the eastern side of Butcher Road. This area he observes is characterised by large stands of mature vegetation, preserved through the subdivision process.[84]
[83] Witness Statement of Ryan Fleming, para 37, Exhibit 4. The extent of the locality is identified earlier at [20].
[84] ts 70-71, 2 November 2022 and Marri Fields Estate Subdivision Guide Plan, Exhibit 6.
The second area he identifies is the properties on the western side of Butcher Road (which includes the subject site). Here, Mr Fleming says this area is characterised by open vistas of rural features and rural residential development. The applicant submits that development on the lots at the northern end of Butcher Road, which includes the subject site, occurred more recently (since 2017) or are currently under construction. In the case of the subject site, the applicant submits trees and vegetation have not yet been planted and says this will occur once the proposed development is complete.[85]
[85] Applicant's SIFC, para 9.14, Exhibit 7.
In his assessment, Mr Fleming accepts it is not uncharacteristic for larger outbuildings to be present in the locality[86] and his witness statement identifies existing outbuildings in the locality.[87] He says this study confirms there are a number of outbuildings in the locality that have a larger floor area than prescribed in Table 1 of LPP 4.19.[88] This study also indicates several outbuildings in the locality with roof ridge heights greater than prescribed in Table 1.[89]
Visual impact of Thomas Road infrastructure works
[86] Witness Statement of Ryan Fleming, para 39, Exhibit 4.
[87] Witness Statement of Ryan Fleming, Annexure 2, Exhibit 4.
[88] Witness Statement of Ryan Fleming, para 40, Exhibit 4.
[89] Witness Statement of Ryan Fleming, Annexure 2, Exhibit 4.
In cross-examination, Mr Fleming was also asked to consider the potential visual amenity impact on the locality of the current infrastructure works on Thomas Road which involves a large and (approximately 10 metre) high concrete bridge structure.[90] Mr Fleming acknowledges this structure is visible from the subject site (approximately 300 metres away) but says, and I accept, there is still a degree of openness maintained and there are views retained of the rural landscape.[91] I do not consider these infrastructure works, which are on the southern periphery of the locality, alter the existing character of the locality in this case.
Desired future character
[90] ts 61, 2 November 2022.
[91] ts 61-62, 2 November 2022.
Mr Fleming asserts that 'regardless of the fact no objections were received during the development application process, consideration should be given to the impact of the [proposed] development on the amenity of current and future residents'.[92] He identifies cl 67(2)(m) of the Deemed Provisions that requires consideration be given to:[93]
… the compatibility of the development with the desired future character of its setting[.]
[92] Witness Statement of Ryan Fleming, para 12, Exhibit 4.
[93] Witness Statement of Ryan Fleming, para 11, Exhibit 4.
I accept the desired future character is a relevant consideration and observe the definition of amenity also encompasses the 'likely future amenity'.[94] When considering the desired future character, Mr Fleming identifies the Shire of Serpentine Jarrahdale Local Planning Strategy (LP Strategy)[95] which he says sets out the plan to retain the rural residential character of the locality and that there is nothing in that document, or in draft LPS 3, that is likely to change the character of the locality in the foreseeable future.[96] I accept this is the case and that the expected pattern of future development will generally reflect current development in the locality.
[94] See [51].
[95] Respondent's s 24 Bundle of Documents, pages 459-697, Exhibit 3. The LP Strategy was endorsed by the Western Australian Planning Commission (WAPC) on 18 March 2022.
[96] ts 31-32, 2 November 2022.
However, the applicant submits the future character of the area is likely to change under 'Perth and Peel @ 3.5 million'[97] which she says indicates the locality will change from 'Rural Living A' to 'Urban'. However, this submission is, in my view, misguided because, 'Perth and Peel @ 3.5 million' and the associated sub-regional planning frameworks are broad strategic planning documents. As I have accepted, there is no proposal to amend the local zoning of this locality contained in the LP Strategy (which relevantly was endorsed by the WAPC on 18 March 2022)[98] or in draft LPS 3.
The Armadale-Byford METRONET project and desired future character
[97] Perth and Peel @ 3.5 million, Exhibit 10 and South Metropolitan Peel, Sub-regional Planning Framework, Exhibit 9. In particular the applicant refers to Appendix 1 - The planning framework - enlargement plans of the South Metropolitan Peel, Sub-regional Planning Framework, page 91, Exhibit 9.
[98] Respondent's s 24 Bundle of Documents, page 459, Exhibit 3.
The applicant also submits that the Armadale-Byford METRONET project will bring an intensification of the use of the rail line which immediately abuts the subject site and which proposes trains running at seven and a half to 15 minute intervals (increasing from the current four times a day) and this will impact future amenity by way of noise and security.[99] The applicant then says the exact location of the new rail line is still being determined (as at September 2022), however it is expected to be located in the centre of the existing Rail Reserve. The applicant sets out that noise studies and modelling are yet to confirm the extent and type of noise measures required to mitigate noise impacts on nearby residents and to ensure the noise guidelines of SPP 5.4 are met.[100]
[99] Detailed in the proposed development, Respondent's s 24 Bundle of Documents, page 68, Exhibit 3.
[100] Applicant's SIFC, para 9.8, Exhibit 7.
The evidence of Mr Fleming is that he accepts there will be a degree of impact caused by noise and he expects the future rail upgrade project to address this amenity impact, but at the present time he says there is the retained rural residential character.[101] He says this includes an ability to see the paddocks and pastureland on the other (western) side of the rail line.
[101] ts 62, 2 November 2022.
Mr Fleming does not provide evidence on the application of the policy provisions of SPP 5.4 in this case. However, it is apparent SPP 5.4 is a consideration in the assessment of the proposed development because the subject site is located within 100 metres of (in fact directly abutting) the Rail Reserve.[102] Clause 6.5.3 of SPP 5.4[103] addresses subdivision and development and seeks to manage and avoid land use conflict. Consistent with this clause, the original application was referred by the respondent to the Public Transport Authority, which confirmed 'no objections, comments or conditions for this proposal'.[104]
[102] Table 1 of SPP 5.4 specifies trigger distances to which the policy applies. See page 2, Exhibit 12.
[103] Page 7, Exhibit 12.
[104] Respondent's s 24 Bundle of Documents, pages 42-43, Exhibit 3. The proposed development was not rereferred to the Public Transport Authority, because it is understood its impact on the Rail Reserve is essentially the same.
Considering the evidence before me, the desired future character of the locality generally reflects the existing character. While I accept the applicant's submission that the Armadale-Byford METRONET project may impact the future character and amenity of the subject site (and adjoining sites), considering the evidence of Mr Fleming, and the submissions made by the applicant, the impact of this project on the likely future amenity of the locality is not able to be determined at this time. Therefore, I do not accord this significant weight in my findings on this issue, but it is considered further later when addressing noise,[105] which is also a relevant amenity consideration.
Impact of the proposed development on the character of the locality
[105] See [91]-[92].
It is uncontroversial the proposed development is located at the rear of the subject site and behind the existing dwelling. On the evidence before me, and from the view, this is generally consistent with the siting of other outbuildings in the locality. However, Mr Fleming says the proposed development is considerably larger in scale than any existing outbuilding in the locality and he asserts this is inconsistent with the character of the locality and 'would be more characteristic with a light industrial or a rural farm shed'.[106] Mr Fleming, in his evidence, relies on cl 2.2.2 of LPP 4.19 to inform his assessment of the proposed development.[107] This clause requires consideration whether a size variation is excessive considering the character of the surrounding area. As mentioned previously,[108] this clause conflicts with the relevant design principle of the R-Codes and in accordance with cl 2.5.5 of the R-Codes is not, in my view, a relevant consideration in the exercise of judgment in this case.
[106] Witness Statement of Ryan Fleming, paras 44 and 45, Exhibit 4.
[107] Witness Statement of Ryan Fleming, para 34, Exhibit 4.
[108] See [38]-[39].
However, the question of the impact of the proposed development (including its size) on the amenity of the locality, considering the character of the locality, is relevant under cl 67(n)(ii) of the Deemed Provisions. Here, Mr Fleming accepts it is not uncharacteristic for larger outbuildings to be present in the locality.[109] He argues the impact on character and amenity of these existing larger outbuildings is 'moderated'. Mr Fleming, in his written evidence, explains what he means by moderated:[110]
… There are a number of outbuildings in the locality that are larger than the LPP4.19 acceptable standards for floor area. However, in these instances, the impact of the development is moderated or balanced. An exceedance can be supported, where an offset is achieved in another area.
[109] Witness Statement of Ryan Fleming, para 39, Exhibit 4.
[110] Witness Statement of Ryan Fleming, para 40, Exhibit 4.
This approach to development assessment, where an exceedance of one acceptable development criteria is offset against another criteria, is not set out in the operative planning framework of the R-Codes (or in LPP 4.19). Mr Fleming's evidence is, in essence, that because the scale of the proposed development is considerably larger than existing outbuildings this makes it inconsistent with the character and amenity of the locality.[111] However, this does not, in my view, provide a reasoned merits based assessment of the impact of the proposed development on the amenity and character of the locality, or consider potential mitigating factors such as the proposed vegetative screening, the location of the subject site which abuts the Rail Reserve and the 73 metre setback of the proposed development from Butcher Road. These aspects are addressed in further detail in issue 1,[112] considering the impact on adjoining neighbours and in issue 3,[113] considering impact on the streetscape.
Impact of the vegetative screen on the character of the locality
[111] Witness Statement of Ryan Fleming, para 44, Exhibit 4.
[112] See [55]-[72].
[113] See [98]-[109].
The respondent also submits the proposed vegetative screening will not be in keeping with the more open landscape character present on the western side of Butcher Road.[114] Under cross-examination by Mr Nair, Mr Fleming accepts on the eastern side of Butcher Road vegetative screening is effective in mitigating the impacts of outbuildings in that part of the locality.[115] Mr Fleming's evidence is that he does not think the species of the proposed vegetative screen will be out of character, but he says the 5 metre height is not consistent with the character on the western side of Butcher Road.[116] However, Mr Fleming concedes there is nothing in the local planning framework to provide guidance to a property owner on the vegetation, including the height of vegetative screening, that can be planted.[117]
[114] ts 71-72, 2 November 2022.
[115] ts 71, 2 November 2022.
[116] ts 72, 2 November 2022.
[117] ts 72-73, 2 November 2022.
To the extent the planting of new vegetation will change the character of the western section of Butcher Road, I accept the vegetative screening will change the open character in this part of the locality. I consider this acceptable because it is more reflective of the character in the majority of the locality and, on the evidence of Mr Fleming, the planning framework does not regulate the planting of trees and shrubs in this case.
Noise
A reason for locating the proposed development close to the Rail Reserve is to mitigate the impacts of the rail line, including noise.[118] Mr Fleming, under cross-examination accepts the proposed development may mitigate noise. However, Mr Fleming is not an acoustic expert, and no expert acoustic evidence was adduced by the parties at the hearing. In the absence of expert evidence and considering the applicant's submissions that acoustic modelling of the impact to the planned upgrade to the rail line is yet to occur,[119] I do not accord this factor significant weight in my findings.
[118] This is acknowledged by the respondent, ts 15, 2 November 2022.
[119] Applicant's SIFC, para 9.8, Exhibit 7. See also consideration of 'Desired future character' at [79]-[85].
However, the presence of the Rail Reserve is relevant when considering the amenity of this rural residential locality, the subject site and neighbouring sites. I accept the proposed development will at least provide a visual barrier, and as Mr Fleming accepts, may mitigate noise associated with use of the Rail Reserve (including the planned increase in use), although I do not accord this significant weight in my findings on this issue and in arriving at my decision in this case.
Findings - Issue 2
In respect to issue 2, I find the proposed development, considering its scale, design and setback to the lot boundary, will be in harmony with the rural residential character and amenity of the locality (including the desired future character) for four reasons.
First, the established rural residential character and amenity of the locality includes the presence of numerous large outbuildings, including some which are unscreened from view in Butcher Road.
Second, the proposed development is sited well back from Butcher Road (setback of 73 metres) and is located behind the existing single storey single house which is consistent with the general siting of outbuildings in the locality.
Third, most of the proposed development will be screened by a vegetative screen (to 5 metres high), further mitigating visual amenity impacts associated with its scale, design and setbacks.
Fourth, because the proposed development abuts a Rail Reserve (to the west) the rural residential character and amenity of the subject site (and this western part of the locality in Butcher Road) is impacted by this reserve. The presence of the Rail Reserve mitigates the impact of the proposed development being mostly outside of the existing building envelope. The proposed development is also likely to assist mitigating the amenity impact of this Rail Reserve on the subject site.
Issue 3 - will the proposed development, by means of its scale and visual prominence, impact upon the streetscape?
The respondent accepts some outbuildings are visible in the streetscape but contends the proposed development because of its scale and siting will appear visually prominent in the streetscape and be detrimental to the streetscape, inconsistent with LPP 4.19.[120] Further, the respondent contends because of the open nature of the lots on Butcher Road, this results in a high level of visibility to the rear of these properties. The respondent contends the resultant visibility of the proposed development due to its bulk and scale will appear at odds with other development in the streetscape.[121]
[120] Respondent's SIFC, para 9.12, Exhibit 2.
[121] Respondent's SIFC, para 9.14, Exhibit 2.
In issue 3 I will consider, in turn, the impact of the proposed development on the streetscape of Butcher Road and the relevant part of the design principle in cl 5.4.3 of the R-Codes.
Impact on the streetscape of Butcher Road
Mr Fleming's evidence identifies the provisions of LPP 4.19 at cl 2.2.4 which he says requires consideration of:[122]
Whether the development is sited behind the front setback line for the dwelling, visible from the street[.]
[122] Witness Statement of Ryan Fleming, para 50, Exhibit 4.
It is uncontroversial the proposed development is setback behind the front setback line of the dwelling. However, Mr Fleming asserts that because significant variations are proposed to the acceptable standards of LPP 4.19 he therefore concludes the scale of the development is excessive. He then says:[123]
… Therefore, I consider that despite being positioned to the rear of the property, the development would appear visually prominent from the streetscape. Accordingly, the proposed outbuilding would result in an adverse visual impact upon the streetscape and should not be approved.
[123] Witness Statement of Ryan Fleming, para 51, Exhibit 4.
In oral evidence, Mr Fleming accepts the vegetative screen will provide a reasonably good level of screening of the proposed development, but notwithstanding the 73 metre setback from the street, he is of the opinion the proposed development will 'still appear as prominent from the street'.[124]
[124] ts 68, 2 November 2022.
In cross-examination, Mr Fleming was asked about another outbuilding located at Lot 201 Aquanita Rise (at the north-east corner of Butcher Road and directly opposite the subject site). Mr Fleming identifies this outbuilding is setback two or three metres from Butcher Road and accepts it is a visually prominent structure, but he says this site presents exceptional circumstances because of the presence of a drainage easement.[125] This outbuilding has a floor area of 180m2, a wall height (facing Butcher Road) of 4.2 metres and a roof ridge height of 5.26 metres and is not screened by vegetation from Butcher Road, nor is it located behind the dwelling on this site.[126] Under further crossexamination from Mr Nair, about this outbuilding, Mr Fleming accepts that while it is definitely visible, he says 'the broader character of the streetscape, in my opinion, is maintained'.[127]
[125] ts 68-69, 2 November 2022.
[126] Witness Statement of Ryan Fleming, Annexure 2 and Figure 6, Exhibit 4.
[127] ts 69-70, 2 November 2022.
This evidence of Mr Fleming, comparing the impact on the streetscape of the proposed development (setback 73 metres from Butcher Road, sited behind the existing single house and with a 5 metre high vegetative screen) and the outbuilding at Lot 201 Aquanita Rise (which is setback two or three metres, not screened by vegetation and not located behind the dwelling) is inconsistent, in my view. Mr Fleming's concerns about the streetscape impact of the proposed development is founded on departures from the acceptable standards of LPP 4.19 and does not provide a reasoned and objective assessment of streetscape impacts of the proposed development. Consequently, I accord little weight to this evidence of Mr Fleming.
Consideration against R-Codes cl 5.4.3
Further, as mentioned at [29], Mr Fleming does not consider the relevant test in cl 5.4.3, P3, of the R-Codes which, in relation to streetscape, requires that the proposed development does 'not detract from the streetscape'.[128] In this case, it is uncontroversial the proposed development is setback 73 metres from the Butcher Road lot boundary, is sited behind the existing single storey dwelling and has a ridge height for the roof that does not exceed the height of the existing dwelling.[129] The wall height of the proposed development is 4.8 metres and a roof ridge height of 6.21 metres. Also, the proposed development is to be screened from view at the front and (also relevant to streetscape impact) the side boundaries by vegetative screening growing to 5 metres high.
[128] Outlined earlier at [28].
[129] The applicant says the peak roof height of the existing dwelling is 6.25 metres, applicant's SIFC, para 9.13, Exhibit 7.
Therefore, in relation to streetscape, in my view, the proposed development satisfies the design principle of the R-Codes in cl 5.4.3, P3 because, considering these factors, it will not detract from the Butcher Road streetscape.
Findings - Issue 3
In respect to issue 3, I find the impact of the proposed development on the streetscape, considering its scale and visual prominence, to be acceptable for two reasons.
First, the proposed development is setback 73 metres from the lot boundary with Butcher Road and is located behind the existing single house (with a roof ridge height no higher than the existing single house) and because of these factors, even considering its scale, it will not present as a prominent feature in, and will not detract from, the streetscape of Butcher Road.
Second, the proposed development is to be screened, including at the front and side boundaries, with vegetative screening growing to 5 metres high which will screen most of the proposed development, and this further ameliorates concerns about visual prominence and impact on the Butcher Road streetscape.
Relevant sub-clauses of cl 67(2) of the Deemed Provisions
Turning finally to cl 67(2) of the Deemed Provisions, the following matters (a), (b), (c), (fa), (g), (m)(ii), (n)(ii), (p), (y) and (za) are relevant in this case. I will address these in turn.
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area[.]
TPS 2, cl 7.1 deals with the general appearance of buildings and the preservation of amenity and states:[130]
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.
[130] Respondent's SIFC, para 5.3, Exhibit 2.
The relevant objectives of TPS 2 applicable to the Rural Living A Zone (where the subject site is located) are identified as:[131]
[131] Respondent's SIFC, para 5.4, Exhibit 2.
…
5.12.1 The purpose an intent of the rural Living A and rural Living B zones is described within the Council's Rural Strategy as amended and adopted by Council and the State Planning Commission dated April 1994.
5.12.2 The Rural Living A Zone is intended to cater for rural residential development on a range of lots between 4,000 square metres to one hectare in accordance with the objectives and guidelines of the Rural Strategy.
…
5.12.9In addition to the provisions contained in Appendix 4A or Appendix 4B and other such provisions of the scheme as may affect it, any land which is included as part of the Rural Living A or Rural Living B zones shall be subject to the following conditions:
…
c)a building envelope with an area not exceeding 1,000 square metres in area shall be defined in a position to be agreed by the Council and no building envelope shall be closer than 20 metres to the primary street boundary or closer than 10 metres to any other lot boundary;
d)no building shall be constructed on a lot other than within the approved building envelope without the written approval of the Council[.]
The relevant matters in TPS 2 are considered earlier. Clause 7.1, which addresses consideration of amenity impacts of a proposed development, is considered in issue 2 at [73] - [97]. The existing building envelope applicable to the subject site is also considered in issue 1 at [60] - [61].
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving[.]
Clause 67(2)(b) involves a consideration of orderly and proper planning in the context of, in this case, TPS 2 and draft LPS 3. The submissions from the parties and the evidence of Mr Fleming do not address orderly and proper planning directly. However, when considering orderly and proper planning in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), at [180], her Honour Pritchard J explains:
… The State Administrative Tribunal has observed that at 'the heart of orderly and proper planning' is a public planning process which permits the assessment of individual applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
Further, Pritchard J observes in Marshall, at [181], that there is no reason why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision.
In this case, on the evidence before me, I am satisfied the orderly and proper planning considerations that arise are identified in the applicable planning framework and having considered that framework, the proposed development meets the requirements of orderly and proper planning.
(c) any approved State planning policy[.]
The R-Codes is a relevant State planning policy and is considered in issue 1[132] and issue 3.[133] SPP 5.4 is also relevant and is considered at [82] and [84].
(fa) any local planning strategy for this Scheme endorsed by the Commission[.]
[132] See [62]-[65].
[133] See [105]-[106].
The local planning strategy for the Shire, endorsed by the WAPC on 18 March 2022, is considered earlier at [80].
(g) any local planning policy for the Scheme area[.]
In this case LPP 4.19 is a relevant local planning policy. Because the proposed development does not meet the acceptable development requirements of Table 1 of LPP 4.19, the proposed development is to be assessed against the relevant design principles of the R-Codes. LPP 4.19 contains two objectives, outlined earlier at [36]. The two objectives are reflective of the relevant design principle of the R-Codes in cl 5.4.3, P3.
Further, cl 2 of LPP 4.19 identifies the matters the Shire (and now the Tribunal) will consider in respect of an application for development approval. These are outlined at [37] and I make observations about cl 2.2.1, cl 2.2.2, and cl 2.2.3 being in conflict with the R-Codes in this case.[134] Clause 2.2.4 is considered when addressing issue 1[135] and issue 3.[136] Clause 2.2.5 requires consideration of whether non-reflective materials are proposed and this is addressed later in these reasons by a condition of approval requiring the applicant to submit a schedule of materials and colours to the Shire for approval.[137] Clause 2.2.6 requires consideration of screening (existing or proposed) and the proposed vegetative screening is considered under each of the issues. Clause 2.2.6[138] [sic] requires consideration of comments from the affected landowners and this is considered at [66].
[134] See [38]-[39].
[135] See [55]-[72].
[136] See [98]-[109].
[137] See [134].
[138] This should be numbered cl 2.2.7.
(m) the compatibility of the development with its setting including —
(i) the compatibility of the development with the desired future character of its setting; and
(ii) the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]
Clause 67(2)(m) involves the compatibility of the development with its setting. This is considered in issue 1, relating to adjoining land,[139] issue 2, relating to amenity of the locality,[140] and in issue 3, relating to the streetscape.[141] The desired future character is considered in issue 2.
(n) the amenity of the locality including the following —
…
(ii) the character of the locality[.]
[139] See [55]-[72].
[140] See [73]-[97].
[141] See [98]-[109].
The amenity of the locality, including the character of the locality, is considered under each of the issues, in particular issue 2.[142]
(p) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved[.]
[142] See [73]-[97].
Vegetative screening is proposed, and this is considered at [59], [89][90], [102] and [105]. The proposed development does not involve removal of trees or other vegetation that should be preserved.
(y) any submissions received on the application[.]
Two submissions of no objection were received, and these are considered at [66].
(za) the comments or submissions received from any authority consulted under cl 66[.]
One submission of no objection was received from the Public Transport Authority and is considered at [84].
Conclusion
The proposed development involves an outbuilding (shed) sited at the rear of an existing single dwelling and screened from view on all sides by proposed vegetative screening (5 metre high hedge). I consider that because the proposed development satisfies the relevant design principle of cl 5.4.3, P3, of the R-Codes and the local planning framework, these are factors which weigh strongly in favour of approval. I have considered the impact of the proposed development on the character and amenity of the locality and based on my findings against each of the issues conclude that the proposed development will not be out of harmony with the existing or desired future character of this rural residential locality.
I conclude that, having due regard to the relevant matters in cl 67(2) of the Deemed Provisions and to the R-Codes (as also required by cl 241(1)(a) of the PD Act), and weighing up my findings in respect to the issues for determination, the correct and preferrable decision is to approve the proposed development with conditions, because it is consistent with:
1)the R-Codes, and in particular the relevant design principle at cl 5.4.3, P3; and
2)the objectives of LPP 4.19, considering the relevant provisions of cl 2.2.
Conditions
In the event the Tribunal determined that the development should be approved, the respondent provided four draft without prejudice conditions.[143] The applicant identifies an error in the wording of condition 1(a), which the respondent accepts.[144] The respondent also accepts the applicant's submission that condition 1(b) is unnecessary because development approval is not required for the rainwater tank.
[143] Respondent's Draft Without Prejudice Condition, Exhibit 5.
[144] Note: This is condition (a) in the orders. The respondent identifies the 'north and south boundary' but accepts this should be corrected to read the 'north and west boundary'.
Condition 2 relates to the requirement for a landscaping management plan. At the hearing this condition was reworded by the respondent, and accepted by the applicant with a time frame of 120 days for implementation of the landscape management plan after construction of the outbuilding is complete, and reads as follows:[145]
… Prior to lodgement of the building permit, a landscaping management plan is to be submitted to the Shire of SerpentineJarrahdale for its approval. The landscaping management plan must include the number of 'Lilly Pilly' shrubs (or an alternative plant species agreed with the Shire of Serpentine-Jarrahdale), nominate the planting period, detail how the ground will be prepared, and provide commitments to maintenance. Once approved by the Shire of Serpentine-Jarrahdale, the landscaping plan must be implemented within 120 days of construction of the outbuilding being completed and the landscaping is to then be maintained in its entirety.
[145] ts 84-86, 2 November 2022. Note: This is condition (c) in the orders.
The later approval of the landscape management plan by the Shire can occur in accordance with cl 74(1) and cl 74(2) of the Deemed Provisions.
This condition is appropriate, in my view, however it also should include a requirement that the shrubs (which form the vegetative screen) are to be maintained to a height of at least 5 metres, as is proposed. The following additional words are to be added to the last sentence of the condition:
… and with the shrubs to be maintained to a height of at least 5 metres.
Draft condition 3 relates to the water tank and the respondent concedes this condition is unnecessary because development approval is not required for this water tank.[146]
[146] ts 74, 2 November 2022.
Draft condition 4 relates to stormwater retention on site and is accepted by the applicant and is, in my view, appropriate.[147]
[147] Note: This is condition (d) in the orders.
Finally, the development application provides no details of materials and colours for the proposed development. The original application drawings depict what appears to be Colorbond metal cladding. However, the amended application does not specify materials or colours for the proposed development. The applicant's SIFC indicates the applicant is amenable to a condition being placed on an approval in relation to the materials and colours.[148] Given the absence of this information it is appropriate, in my view, to impose a condition requiring that prior to the issue of a building permit the applicant is to submit a schedule of materials and colours for the proposed outbuilding, to be approved by the Shire and then for the approved materials and colours to be maintained.[149] The later approval of this schedule of materials by the Shire can occur in accordance with cl 74(1) and cl 74(2) of the Deemed Provisions.
[148] Applicant's SIFC, para 9.14, Exhibit 7.
[149] Note: This is condition (b) in the orders.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent on 3 August 2022 to refuse a development application for a proposed outbuilding at No 29 (Lot 26) Butcher Road, Darling Downs, is set aside and a decision substituted that development approval is granted for the proposed outbuilding under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, subject to the following conditions:
(a)The following development as depicted within the plans received 20 June 2022 shall form part of this approval:
(i)A 17 metre x 16 metre outbuilding, with a 4.8 metre wall height and 6.21 metre ridge height, setback 6 metres from the north and west boundary.
(b)Prior to lodgement of the application for a building permit, a schedule of materials and colours for the outbuilding is to be submitted to the Shire of Serpentine-Jarrahdale for its approval. Once the outbuilding is constructed the approved schedule of materials and colours is to be maintained.
(c)Prior to lodgement of the application for a building permit, a landscaping management plan is to be submitted to the Shire of Serpentine-Jarrahdale for its approval. The landscaping management plan must include the number of 'Lilly Pilly' shrubs (or an alternative plant species if agreed in writing with the Shire of Serpentine-Jarrahdale), nominate the planting period, detail how the ground will be prepared, and provide commitments to maintenance. Once approved by the Shire of Serpentine-Jarrahdale the landscaping plan must be implemented within 120 days of construction of the outbuilding being completed and the landscaping is to then be maintained in its entirety, and with the shrubs to be maintained to a height of at least 5 metres.
(d)All stormwater shall be disposed of within the property. Direct disposal onto the road, neighbouring properties, watercourses and drainage lines is not permitted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
16 JANUARY 2023
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