Penfold and Shire Of Exmouth
[2012] WASAT 171
•28 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PENFOLD and SHIRE OF EXMOUTH [2012] WASAT 171
MEMBER: MS L WARD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 AUGUST 2012
FILE NO/S: DR 2 of 2012
BETWEEN: JASON PENFOLD
Applicant
AND
SHIRE OF EXMOUTH
Respondent
Catchwords:
Town planning Preliminary issue Residential Development zone Definition of dwelling Transportable dwelling Mobile house Outline Development Plan Application of Policy 6.38 Any inconsistency with town planning scheme Development approval required
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), Appendix 1
Shire of Exmouth Town Planning Scheme No 3, cl 1.34, cl 1.8.2, cl 3.2.2, cl 4.6, cl 4.6.1, cl 4.7, cl 4.7(b), cl 5.2, cl 5.2.3(m), cl 8.1.1, cl 8.1.2, cl 9.6, cl 9.6.6, cl 9.6.7
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
The application does involve a dwelling and development approval is required
Category: B
Representation:
Counsel:
Applicant: Mr D Markovich
Respondent: Mr D McLeod
Solicitors:
Applicant: Murfett Legal
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Jason Penfold lodged an application with the Shire of Exmouth on 11 October 2011 for planning approval in relation to the construction of a residential dwelling. The proposed development included a mobile house, outbuilding and carport.
The proposed development is within the Residential Development Zone in the Shire of Exmouth Town Planning Scheme No 3 and is subject to the Outline Development Plan for Lots 11 and 12 Market Street Exmouth dated March 2007. The proposed development is also subject to the Shire of Exmouth Policy 6.38 - Design Guidelines Lot 11 and 12 Market Street Exmouth - Seaside Estate.
Mr Penfold submitted that no planning approval was required because, in accordance with section 4.0 of the Shire of Exmouth Policy 6.38 Design Guidelines Lot 11 and 12 Market Street Exmouth Seaside Estate, the proposed development was for a dwelling within the subdivision.
The Shire of Exmouth submitted that planning approval was required because the Shire of Exmouth Policy 6.38 - Design Guidelines Lot 11 and 12 Market Street Exmouth - Seaside Estate is a guideline and is subject to the Shire of Exmouth Town Planning Scheme No 3 to the extent of any inconsistency. Relevantly, cl 4.6.1 and cl 4.7(b) of the Shire of Exmouth Town Planning Scheme No 3 applied as the proposed development involved a transportable dwelling. As a result, the Shire of Exmouth submitted that the Shire of Exmouth Town Planning Scheme No 3 required it to exercise its discretion and that this implicitly meant that planning approval was required.
The Tribunal found that the 'mobile house' was a dwelling as defined in the Residential Design Codes of Western Australia (2008). More particularly, the Tribunal found that the mobile house was a transportable dwelling and that therefore cl 4.6.1 and cl 4.7(b) of the Shire of Exmouth Town Planning Scheme No 3 applied. The Tribunal accepted that cl 4.6.1 and cl 4.7(b) of the Shire of Exmouth Town Planning Scheme No 3 required the Shire of Exmouth to exercise its discretion and that this indicated implicitly, that planning approval was required for a transportable dwelling.
Further, the specific provisions of the Shire of Exmouth Town Planning Scheme No 3, relating to transportable dwellings, prevailed over the general Shire of Exmouth Policy 6.38 - Design Guidelines Lot 11 and 12 Market Street Exmouth - Seaside Estate to the extent of any inconsistency due to the operation of cl 9.6.7 of the Shire of Exmouth Town Planning Scheme No 3. Accordingly, Mr Penfold does require development approval having regard to section 4, cl 1 of the respondent's Policy 6.38. The Tribunal also found that the Outline Development Plan for Lots 11 and 12 Market Street Exmouth, dated March 2007, supported the requirement that development approval was required for the proposed building.
Introduction
Mr Jason Penfold (Mr Penfold or applicant) lodged an application for planning approval with the Shire of Exmouth (Shire) on 11 October 2011 for the construction of a residential dwelling, outbuilding and carport (proposed development).
More particularly, the proposed development consists of three parts, namely:
•dwelling - smart house folding mobile house which is an adapted sea container and is described as the main area and is approximately 80 square metres;
•outbuilding - an adapted sea container approximately 40 square metres; and
•carport - adjoining the dwelling and approximately 36 square metres in area.
Mr Penfold sought approval from the Shire to build the home on vacant land at Lot 51 (No 14) Crevalle Way, Exmouth (property). The property is within an area known more particularly as being part of Lot 11 and Lot 12 Market Street, Exmouth, which is also known as Seaside Estate.
The property is within the 'Residential Development Zone' (RDZ) in the Shire of Exmouth Town Planning Scheme No 3 (TPS 3) and is subject to the Outline Development Plan for Lots 11 and 12 Market Street Exmouth (ODP) dated March 2007.
The proposed development is also subject to the Shire of Exmouth Policy 6.38 - Design Guidelines Lot 11 and 12 Market Street Exmouth - Seaside Estate (Policy 6.38).
The Shire's planning officer provided a report to the Council dated 6 November 2011. The planning officer referred to the proposed development as being in the Residential zone and recommended that the application be refused.
Mr Penfold's application for planning approval was refused by the Council on 17 November 2011. In broad terms, the reasons for refusal decision related to the following factors: the visual contrast the proposed development would present to adjoining properties; the introduction of a new dwelling type would detract from the high standard of development sought in the area; and that the variation to the minimum dwelling size would set a precedent in Seaside Estate.
Application to SAT
Mr Penfold applied to the Tribunal for review of the Shire's refusal decision on 4 January 2012. The application for review is made pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
The application was subject to two direction hearings in the Tribunal. Both parties are legally represented before the Tribunal. On 26 March 2012, the applicant's solicitors provided a statement of the preliminary legal issue for determination by the Tribunal on the papers. Subsequently, the parties agreed to a statement of facts, an agreed bundle of documents and both parties filed written submissions.
Then on 18 May 2012, the solicitors for the Shire wrote to the Tribunal and to the applicant's solicitors, and stated that the Shire had recently advised that the property in question was zoned 'Residential Development' rather than 'Residential', as both parties had previously assumed. A copy of the scheme map extract was provided and was marked with an 'X' to show where the property is located.
The final written submissions from the parties were received in the Tribunal on 8 June 2012. However, at the request of the Tribunal, on 13 August 2012, the Shire provided to it a copy of a document titled, 'Proposed Outline Development Plan for Lots 11 and 12 Market Street Exmouth, dated March 2007' (ODP). A copy of the ODP was subsequently provided by the Tribunal to the applicant. On 27 August 2012, the Shire wrote to the Tribunal and stated 'that the OPD on the Shire of Exmouth website [was] an approved copy'.
This matter is being determined on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Planning framework
The property is within the Municipal District of the Shire and therefore it is subject to TPS 3 (as per cl 1.34 of TPS 3). The site is zoned 'Residential Development' in TPS 3. As set out below in greater detail, the Shire has created and adopted an ODP and Policy 6.38 pursuant to TPS 3.
According to the zoning table in TPS 3, all uses in the RDZ are subject to cl 5.2 of the TPS 3. Clause 5.2 of TPS 3 deals with the 'Developmental Requirements' within the RDZ and requires the creation of an ODP and states that the ODP 'shall form the basis for subdivision'. Clause 5.2.3(m) of TPS 3 goes on to state that:
5.2.3(m)The use, subdivision, or development of land subject to an Outline Development Plan is to be in accordance with the endorsed Outline Development Plan for the land, relevant provisions of the Scheme, planning policies, and any other provisions applying to the land as specified in the endorsed Outline Development Plan.
The ODP relevantly states under the heading 'Planning Policy Statement' that:
…
2.Acceptable land uses for lots created in the subdivision of the subject land, shall be in accordance with the Residential zoning in Table 1- Zoning Table in …TPS 3 …
3.All development shall be in accordance with the Residential Design Codes of WA, and statutory assessment/approval procedures within the … (TPS 3)
4.Detailed design guidelines for the built form shall be prepared by the proponent and endorsed by the Shire of Exmouth
…
According to the zoning table in TPS 3, in a residential zone, a dwelling is listed as a 'P' use. Clause 3.2.2 states that, 'P means that the use is permitted by the scheme'.
In relation to Policy 6.38, the Tribunal notes that it was expressly created by the Shire pursuant to cl 9.6 of TPS 3 and prepared in line with the 'approved ODP'. Policy 6.38 applies because the property the subject of this application is more particularly within Lot 11 and Lot 12 of the Market Street Exmouth subdivision. Section 4.0 'Approval Procedure' of Policy 6.38 states as follows:
1.No planning approval is required for development of a dwelling within the subdivision;
2.Planning approval is required for all development including dwellings on Lots 21 - 27, any variation to the Residential Design Codes for dwellings and ancillary structures i.e Sheds, outbuildings[.]
…
Preliminary issues
In the context of the agreed facts of this matter and the above planning framework, the parties have identified the following preliminary issues for determination by the Tribunal:
1)Does Mr Penfold's application for development approval involve a dwelling?
2)If the answer to question 1 is yes, does Mr Penfold require development approval, having regard to section 4, cl 1 of the respondent's Policy 6.38?
Does Mr Penfold's application for development approval involve a dwelling?
The resolution of the first preliminary issue turns on whether or not the proposed development involves a dwelling. It is agreed between the parties that part of the development is a main living area and bedrooms, which is a mobile house, with an area of 80 square metres.
Mr Penfold's solicitor submits that the application for development approval does involve a 'dwelling', as defined in Appendix 1 'Definitions' of the Residential Design Codes of Western Australia (2008) (Codes).
The Shire's submissions focus on whether the proposed development involves a transportable dwelling, as set out in cl 4.6.1 of TPS 3, rather than a dwelling per se.
In the Tribunal's view, in order to resolve the first preliminary issue, a finding in relation to the general term, 'dwelling', is all that is required. A finding as to whether it is more specifically a 'transportable dwelling' is relevant to the second preliminary issue. The Tribunal notes that the Codes apply by virtue of cl 1.8.2 of TPS 3. In this regard, the Tribunal accepts that the definition of dwelling in the Codes is very broad and includes a '… building … adapted … or intended to be used for the purpose of human habitation on a permanent basis …'
The Tribunal accepts that Mr Penfold and his family intend to live in the proposed development as their family home, as set out in his letter to the Shire dated 13 October 2011. As Mr Penfold intends to reside in the proposed development on a permanent basis, the Tribunal finds that it is a dwelling under the Codes. Accordingly, the Tribunal finds that Mr Penfold's application for development approval does involve a dwelling.
The Tribunal will now consider the second preliminary question.
Does Mr Penfold require development approval, having regard to section 4, cl 1 of the respondent's Policy 6.38?
The resolution of the second preliminary issue turns on the interpretation of Policy 6.38 and its interaction with various specific clauses of TPS 3. The submissions from the parties address the interpretation of Policy 6.38 and these submissions are summarised below.
Mr Penfold's solicitors submit that no approval is required because section 4 cl 1 of Policy 6.38 states that it is not required for development of a dwelling within the subdivision. Further, it is submitted that a dwelling includes a transportable dwelling and that, accordingly, no planning approval is required under Policy 6.38. In essence, Mr Penfold's solicitors submit that the Tribunal should not look beyond Policy 6.38 to TPS 3.
In contrast, the Shire's solicitors submit that Policy 6.38 is a guideline which is not a binding statement of law, unlike the provisions of a planning scheme like TPS 3. Therefore the Shire submits that Policy 6.38 is subject to TPS 3 to the extent of any inconsistency.
Turning now to the relevant parts of TPS 3, the Shire refers to a number of clauses in TPS 3 as indicating that Mr Penfold is required to seek planning approval for the development, as the Shire is required to exercise its discretion in the circumstances, which it submits, apply to this proposed development. The main clauses referred to by the Shire are listed below.
Firstly, cl 8.1.1 of TPS 3 requires planning approval to carry out the development of any land zoned under TPS 3. Clause 8.1.2(a) to cl 8.2.1(g) of TPS 3 goes on to list a number of situations where planning approval is not required. Accordingly, even where cl 8.1.2(b) of TPS 3 applies, it is subject to the other provisions of TPS 3. The other provisions of TPS 3 include cl. 4.6 and cl 4.7, both of which refer to transportable dwellings, which the Shire submits, in effect, require development approval from it.
The Shire submits that the need for it to exercise an 'opinion' indicates that it has a discretion under cl 4.6.1 of TPS 3, which indicates implicitly that planning approval is required where the building is to be used as a dwelling and is a transported dwelling, as in this application.
Thirdly, similarly, the Shire submits that cl 4.7 'Minimum Standards For Dwellings' of TPS 3 also requires the exercise of discretion by the Shire, as transportable dwellings 'may be approved' pursuant to cl 4.6. Clause 4.7 of TPS 3 relevantly states that:
Notwithstanding anything elsewhere contained in the Scheme the following minimum standards are required for all dwellings in the Scheme Area:
…
(b)transportable dwellings may be approved pursuant to clause 4.6 of the Scheme subject to the building being a single house; mining camp type transportable accommodation units shall not be permitted in the Exmouth townsite;
…
Turning, now to the Tribunal's consideration of the second preliminary issue, it notes that Policy 6.38 has been created expressly pursuant to cl 9.6 of TPS 3. The Tribunal also notes that the Shire's submission that TPS 3 prevails over Policy 6.38 is also consistent with TPS 3 itself. In particular, cl 9.6.6 and cl 9.6.7 of TPS 3 relevantly state that:
9.6.6A Policy shall not bind the Council in respect of any application for planning approval but the Council shall have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making its decision.
9.6.7Any Policy prepared under this clause shall be consistent with the Scheme and where any inconsistency arises the Scheme shall prevail.
Accordingly, as a matter of interpretation of TPS 3 and Policy 6.38, the Tribunal accepts that Policy 6.38 is subordinate to TPS 3 wherever the documents are inconsistent. It follows that the Tribunal finds that section 4.0 of Policy 6.38 is subject to the relevant parts of TPS 3, where any inconsistency arises.
Having considered the submissions from both parties as to whether or not Mr Penfold is required to apply for planning approval, the Tribunal finds that planning approval is required if the dwelling in question is a transported dwelling. While the term 'transported dwelling' is not defined in TPS 3 or in the Codes the parties have agreed that the dwelling is a 'mobile house'. Accordingly, the Tribunal is satisfied there is no factual dispute that the proposed development includes a transported dwelling.
The Tribunal accepts that a dwelling may include a transported dwelling. However, the Tribunal finds that cl 4.6 'Transported Dwellings' and cl 4.7 'Minimum Standards For Dwellings' of TPS 3 both apply as specific provisions in TPS 3. The Tribunal accepts the Shire's submission that cl 4.6 and cl 4.7 of TPS 3 both require the Shire to exercise its discretion, such that planning approval is required where a 'transportable dwelling' is involved, as in this case. Policy 6.38 applies to dwellings generally and TPS 3 refers to specific types of dwellings, namely, transportable dwellings, and in accordance with cl 9.6.7 of TPS 3, the Scheme prevails to the extent of any inconsistency over Policy 6.38. The inconsistency in this case between Policy 6.38 and TPS 3 is whether or not planning approval is required. As Policy 6.38 is inconsistent with cl 4.6 and cl 4.7 of TPS 3, in accordance with cl 9.6.7 of TPS 3, the Scheme prevails.
In conclusion, the specific provisions of TPS 3, which deal expressly with transportable dwellings and which require the Shire to exercise its discretion, prevail to the extent of any inconsistency over the general policy set out in Policy 6.38, due to the operation of cl 9.6.7 of TPS 3.
Accordingly, Mr Penfold does require development approval having regard to section 4, cl 1 of the respondent's Policy 6.38.
Does Mr Penfold require development approval, having regard to the OPD?
For the sake of completeness, as the property is within the RDZ and there is an OPD in place, the Tribunal will address a further question, namely:
•Does the existence of the OPD alter the need for Mr Penfold to obtain planning approval from the Shire?
As set out above, under 'Planning Framework', an OPD is required for land within the RDZ, due to the terms of cl 5.2.3(m) of TPS 3.
Turning now to whether or not the OPD alters the need for Mr Penfold to obtain planning approval from the Shire, the Tribunal notes that the relevant terms of the OPD, which are referred to below, all indicate that planning approval is required.
Firstly, Planning Policy Statement No 2 in the OPD states that 'residential zoning' applies for lots created in the subdivision, which includes the property in this case. Under the zoning table in TPS 3, a dwelling is a permitted use. In relation to planning approval, cl 8.1.2(b) of TPS 3 states that:
The planning approval of the Council is not required for the following development of land:
…
(b) the erection on a lot of a single house, including ancillary outbuildings in a zone where the use is a permitted (“P”) use in the zone in which that land is situated except as otherwise provided by the Scheme;
The general provision under cl 8.1.2(b) of TPS 3 that planning approval is not required in the subdivision is, however, subject to exception. The exception to the rule is where TPS 3 'otherwise' requires planning approval. For example, TPS 3 requires planning approval where a transportable dwelling is involved, as set out above in cl 4.6.1 and cl 4.7(b) of TPS 3. Accordingly, in this case, as a transportable dwelling is part of the proposed development, the OPD is expressed to be subject to the specific provisions of TPS 3. As set out above, cl 4.6.1 and cl 4.7(b) of TPS 3 require that Mr Penfold seek planning approval from the Shire for the development of his property because it includes a transportable dwelling.
Secondly, Planning Policy Statement No 3 in the OPD, expressly states that all development in the subdivision is to be in accordance with the approval procedures within TPS 3. As set out above, the approval procedures within TPS 3 include cl 4.6.1 and cl 4.7(b) of TPS 3, which relate to transportable dwellings.
Thirdly, Planning Policy Statement No 4 in the OPD requires that detailed design guidelines are to be prepared by the proponent and endorsed by the Shire.
Accordingly, in summary, the existence of the OPD does not alter the need for Mr Penfold to obtain planning approval from the Shire.
Conclusion
In conclusion, the Tribunal is satisfied that Mr Penfold is required to obtain planning approval from the Shire for his proposed development. This is due to the specific requirements of TPS 3, which relate to transportable dwellings, and which prevail over Policy 6.38 to the extent of any inconsistency and also to the planning policy statements expressed in the OPD.
Orders
The Tribunal makes the following orders:
1.The first preliminary issue is answered as follows: the applicant's application for development approval does involve a dwelling.
2.The second preliminary issue is answered as follows: the applicant does require development approval having regard to section 4, cl 1 of the Shire of Exmouth Policy 6.38 - Design Guidelines Lot 11 and 12 Market Street Exmouth - Seaside Estate.
3.The proceeding is adjourned to a directions hearing at 10 am on 6 September 2012 in order for the parties to consider their positions in light of the determination of the preliminary issues.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L WARD, MEMBER
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