PIRRET and SHIRE OF SERPENTINEJARRAHDALE

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PIRRET and SHIRE OF SERPENTINEJARRAHDALE [2009] WASAT 211

MEMBER: MR J JORDAN (MEMBER)

HEARD: 30 SEPTEMBER 2009

DELIVERED : Edited reasons delivered orally on 2 OCTOBER 2009

FILE NO/S: DR 282 of 2009

BETWEEN: JENNIFER PIRRET
Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent

Catchwords:

Town Planning - Development - Refusal - Second house on rural lot - Rural workers dwelling - Close proximity to existing house requirement of local planning scheme - Close proximity in context - Purpose of close proximity - Access to existing house - Common use of services - Road frontage - Concern about subdivision pressure

Legislation:

Planning and Development Act 2005 (WA), s 24(1)(a), s 252(1)
Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 5.10.1, cl 5.10.3, cl 5.10.3(a)(iv), cl 5.10.3(c)
Transfer of Land Act 1893 (WA), s 70A

Result:

The application for review is allowed
The decision of the Shire of SerpentineJarrahdale of 3 July 2009 is set aside and conditional planning approval is granted for the development of a rural workers dwelling at No 124 (Lot 813) Manning Road, Hopeland

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr M Daymond (Representative)

Solicitors:

Applicant: Self-represented
Respondent: Shire of Serpentine-Jarrahdale

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

Evers and the Shire of SerpentineJarrahdale [2008] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mrs Jennifer Pirret applied for review of the decision of the Shire of SerpentineJarrahdale to refuse her application for planning approval for a rural workers dwelling at No 124 (Lot 813) Manning Road, Hopeland.
The Shire of SerpentineJarrahdale refused the application because it considered the proposed rural worker's dwelling would not be in close proximity to the existing dwelling on the site as required by the local planning scheme.
Following the hearing, the Tribunal, two days later, gave an oral decision in which it granted planning approval for the development of the rural workers dwelling.
The Tribunal found that for the purposes of the local planning scheme, the proposed rural worker's dwelling would achieve close proximity with the existing dwelling on the site.
The Tribunal's reasons taken from the transcript and edited in minor respects, were as follows.

Introduction

The matter involves an application by Mrs Jennifer Pirret (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the Shire of SerpentineJarrahdale (Council, Shire or respondent) to grant planning approval for the development of a rural worker's dwelling at No 124 (Lot 813) Manning Road, Hopeland (site).

Site

The site is owned by a family trust of which the applicant is a beneficiary. Beef cattle farming is carried out on the site by a company called Zenmara Pty Ltd; and GE and JE Hill, who are trustees for the family trust and Mrs Pirret's parents.
The site has an area of approximately 44.6 hectares. At the western boundary the site has frontage of about 850 metres to Manning Road, constructed to an unsealed standard to within about 100 metres of the northern boundary of the site.
The northern boundary of the site has frontage of about 520 metres to Rowe Road reserve. There is mostly remnant vegetation in this reserve adjacent to the site with no constructed road. The family trust also owns Lot 343 adjoining to the east, which is used as part of the farm but which only has access across the site.
At about mid-point of the Manning Road frontage is a vehicle crossover to a treelined driveway which provides access to an existing house 375 metres from the road. This is the residence of GE and JE Hill. About 130 metres from Manning Road along this driveway are a machinery shed, a shed used for hay and other storage and two concrete water tanks.

Proposed development

The applicant applied for planning approval to build a rural worker's dwelling adjacent to the driveway and the sheds about 70 metres from the road. Mr and Mrs Hill would continue to occupy the existing house. The applicant and her husband would occupy the new dwelling and assist in the working of the property.

Planning framework

In the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2) there is the definition:
Rural workers dwelling means a dwelling:
(a)which is on land upon which there is already erected a dwelling and which is occupied by persons engaged in any of the following uses on that same land: Cottage Industry; Feedlot; Fish Farming; Horticultural Pursuit; Pig Farming; Poultry Farming; Rural Industry or Rural Use; and
(b)which can also accommodate family members involved in the operation of an agricultural enterprise on that land.
The Shire characterised the proposed dwelling as a rural worker's dwelling consistent with this definition. The site is zoned Rural in TPS 2. At cl 5.10.1 of TPS 2 it states:
The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
Clause 5.10.3 of TPS 2 states relevantly:
(a)The Council may permit the construction of an additional dwelling on a lot within the rural zone provided that:-
(i)the lot has a land area of not less than four hectares; and
(ii)the total number of dwelling on the lot will not exceed two; and
(iii)the additional dwelling is to be used for the purposes of a rural workers dwelling as defined in Appendix 1 of the Scheme; and
(iv)the additional is located within close proximity of the existing dwelling on the lot as determined by the Council and shares all services where practical.
There is clearly a word not in cl 5.10.3(iv) but the meaning is clear from its content. Clause 5.10.3 also includes:
…
(c)The existence of more than one dwelling on a lot within a rural Zone shall not be considered as sufficient grounds for subdivision.
The planning framework relevant to this matter also includes State Planning Policy No 2.5 Agricultural and Rural Land Use Planning (SPP 2.5). The Tribunal must give due regard to SPP 2.5 as required by s 241(1)(a) of the PD Act.

The refusal

The Council refused the application for the reason:
The proposed location of the Rural Workers Dwelling does not comply with clause 5.10.3(a)(iv) of the Shire of SerpentineJarrahdale Town Planning Scheme No 2 as the rural workers dwelling is not located within close proximity of the existing dwelling on site.
The applicant then applied to the Tribunal for review of the Council's refusal.

Issue

The parties agreed that the issues were:
(1)whether the location proposed for the additional dwelling is within 'close proximity' of the existing dwelling for the purposes of cl 5.10.3(a)(iv) of TPS 2; and
(2)if the answer to Issue 1 is 'no', whether the additional dwelling should nevertheless be approved.

Discussion

Issue 1: whether the location proposed for the additional dwelling is within close proximity of the existing dwelling for the purposes of cl 5.10.3(a)(iv) of TPS 2

Mr Michael Daymond, a town planner at the Shire, appeared for and as an expert witness for the respondent. It was Mr Daymond's evidence that TPS 2 was amended by the addition of cl 5.10.3 in December 2004 (amendment 127). He said the purpose of amendment 127 was to bring TPS 2 into line with SPP 2.5, in particular SPP 2.5 cl 5.2.2(iv) which states:
Provisions in the town planning scheme to allow more than one dwelling on a lot in the 'Priority Agriculture' zone will not be supported unless the additional dwelling(s) provides
(a)accommodation for workers employed for agricultural and intensive agricultural activities on that holding; and
(b)the dwellings should generally be clustered in one location to avoid future subdivision pressure and minimise constraints on adjoining uses; and
(c)all services to the dwellings from the lot boundary, including access roads, are shared where practicable.
Mr Daymond said that the Council's policy stance when dealing with applications for a rural workers dwelling has been to restrict construction to within about 30 metres of the existing dwelling. This is not a formal policy but an informal policy used in practice to guide determinations on what is 'close proximity' to an existing dwelling. He said that the Council has consistently applied this standard. Mr Daymond said in his written statement:
The purpose behind the close proximity clause is to avoid future subdivision pressure and to minimise constraints on adjoining uses.
He was of the view that even if it was not the intention of the current owners to subdivide, if there are two houses a future owner could be encouraged to subdivide contrary to the intent of TPS 2 cl 5.10.3 and SPP 2.5 cl 5.2.2(iv).
The applicant provided a list of what was said to be examples of Council approving second dwellings at distances greater than 30 metres on rural lots in the district. This, it was said, illustrated the inconsistent application of the close proximity policy of the Council. Mr Daymond responded to each of these examples. He said that some developments predate cl 5.10.3 of TPS 2 or they either replaced an existing dwelling, had vegetation worthy of preservation, had topographical difficulties of terrain or water courses or required separation from a use such as poultry sheds.
One example was in Keysbrook, where prior to amendment 127 a separation of 120 metres was allowed because of the location of an established dairy farm paddock. Mr Daymond was of the opinion that the site did not include any of these characteristics. He acknowledged that the proposed house site was on sand of poor quality for agriculture but considered the approximately 2,000 square metres of productive area required for the house would be a small proportion of the productive area.
Mr Daymond said that a 40 metre separation to avoid the trees planted around the existing dwelling would still place the new house within close proximity. In his submission, the location of the existing outbuildings was not a relevant consideration. This was because SPP 2.5 cl 5.2.2(iv) refers to dwellings being clustered in one location and TPS 2 cl 5.10.3(a)(iv) refers to additional dwellings being in close proximity to the existing dwelling; that is, the proposed location is to be considered relative to existing houses and not relative to any existing outbuildings.
Mr Daymond said separation between houses of about 270 metres would not be 'close proximity'. In his opinion, it would be possible to share amenities, avoid vegetation and drainage lines and locate the proposed dwelling at about 40 metres from the existing dwelling and satisfy the close proximity requirements of TPS 2.
The applicant gave evidence on her own behalf. Mrs Pirret said that the purpose of the rural worker's dwelling was for her and her husband to initially assist with and then assume the general farm and caretaking duties as her parents moved towards retirement. Mrs Pirret listed a number of reasons why the house site applied for was chosen.
In summary, the proposed house site:
(a)is situated on a ridge of Bassendean sand making it ideal for building. A crosssection on the application sketch showed the proposed dwelling site and sheds to be about two metres higher than the existing productive land;
(b)can utilise all existing amenities other than a septic system, in keeping with TPS cl 5.10.3(a)(iv) which requires the sharing of available services where practicable;
(c)will not impact on productive and viable rural land required to sustain the business in keeping with the objective of SPP 2.5 cl 4, which is to protect agricultural land resources wherever possible;
(d)would provide security for the sheds as there have been problems with break ins and theft;
(e)requires no removal of trees or native vegetation including local species, trees planted to protect the existing dwelling and trees of sentimental value;
(f)maintains privacy to families;
(g)maintains more of a visual rural appearance rather than as an isolated house on a rural property;
(h)is for a worker's dwelling which would be expedient to erect central to the business sector of the property.
The applicant said that the only criteria the respondent has said is not met is that part of cl 5.10.3(a)(iv) of TPS 2 in regards to close proximity. Mrs Pirret referred to Evers and the Shire of SerpentineJarrahdale [2008] WASAT 5, (Evers) which she said made reference to the 30 metre separation requirement being an arbitrary distance.
Mrs Pirret said that 30 metres is appropriate for a 4 hectare lot but a greater distance should be allowed on a larger lot. Referring to an example of a 200 metre separation at No 124 (Lot 813) Manning Road she was of the opinion that 400 metres would be appropriate on the site as long as the buildings were in a cluster as referred to is SPP 2.5 cl 5.2.2.
Mrs Pirret emphasised she did not wish to subdivide and in any event would be prevented by cl 5.10.3(c) of TPS 2 from using two houses on the site as a basis for subdivision.
The applicant also called as a witness Mrs Judith Hill, a coowner and manager of the property, and Mrs Pirret's mother.
Mrs Hill expressed similar opinions to the applicant as to the merits of the location selected for the proposed rural worker's dwelling. She emphasised the wish to maintain privacy between the two houses, which she considered important to address the Council objective of maintaining a rural lifestyle in the rural zone. She also considered this important, if the workers in the second house were not to be family members at some future time.

Comment

In Evers, the Tribunal dismissed an application that a rural workers dwelling be allowed on a 40 hectare lot, 120 metres west of the existing house. At [44], the Tribunal said:
In this review the Tribunal finds that the proposal fails to meet the requirements of close proximity because the services and access road are not shared and because the 120 metre separation distance (which includes a significant eastwest separation) may create potential for future subdivision pressure.
The Tribunal notes, however, that in that instance the Tribunal as constituted, also said at [38] to [43]:
The issue for the Tribunal to determine is whether 120 metres may be considered as 'close proximity'. The respondent argues that 30 metres is the maximum separation for dwellings to be in close proximity. The Tribunal agrees with the applicants that 'close proximity' is a relative term and only has meaning in the context of the locality and the subject land. On that basis, the Tribunal finds the respondent's 30 metre limit to be an arbitrary distance.
Clause 5.10.3(a)(i) enables a second dwelling to be built on a rural lot with a minimum size of 4 hectares. Relying on relative sizes alone is not a satisfactory method for determining whether two dwellings are located in close proximity to each other.
Another factor to consider is the intent for dwellings to be in 'close proximity'. SPP 2.5 indicates that the purpose is to avoid future subdivision pressure and to minimise constraints on adjoining uses. In the context of this review, the second dwelling is located further within the lot and is unlikely to place any constraints on land uses on adjoining properties. However, there is a risk that in the future, the greater the separation distance the greater the potential for subdivision pressure. The existing dwelling is located close to the side boundary. The proposed location of the new dwelling will facilitate potential future subdivision. If the dwelling was located within 30 metres as required by the respondent, future subdivision would be very difficult.
As a final guide to an acceptable separation distance, TPS 2 requires that the dwellings share services where practical. The proposal does not share services and/or access roads. There was no evidence presented to indicate that it was not practical to share services.
Therefore, while the Tribunal agrees with the applicants that separation distances are relative to the size of the subject lot, the Tribunal finds there are limits on the relativity. The dwellings should still be close enough to share services and access roads if practical and the separation distance should not be large enough to increase potential for future subdivision pressure.
The respondent's practice of using 30 metres as a maximum separation distance appears to be arbitrary and it may be appropriate to approve a greater distance than 30 metres in this case because the existing dwelling is set back over 100 metres from Randell Road. The critical distance is the number of metres of separation that runs parallel to Randell Road (east-west separation) because this distance will determine the future setback from a common side boundary if future subdivision is proposed and it will also determine the width of the lot that would adjoin the existing side (east) boundary. The separation between the dwellings in terms of the distance that is perpendicular to Randell Road (north-south separation) is of less relevance and will have limited impact on the potential to share services …
With respect, the Tribunal considers the approach outlined in Evers to be appropriate to analysis of the application for a rural worker's dwelling now before it for the site. The Tribunal considers however that a different conclusion can be drawn in this instance. Unlike in Evers, it is proposed that the second house on the site use existing amenities, specifically the crossover and driveway, electricity points and a water tank.
A significant point is that the proposed house would be in line with the existing house, perpendicular to Manning Road. There would be no lateral separation parallel to Manning Road. Notwithstanding cl 5.10.3(c), there would not be available a separation distance between the dwellings relative to constructed road frontage that might be used to support a future subdivision application.
The evidence of Mr Daymond was that there were no plans to construct Rowe Road on the northern boundary of the site and it was not apparent that a review of the rural strategy to commence in 2010 would result in any change to lot sizes and land use currently in place in this rural locality.
Relevant to the consideration of the suitability of the proposed house site are the planning objectives for the locality. The objective of the rural zone in TPS 2 is to accommodate the full range of rural pursuits and associated activities and the objectives at cl 4 of SPP 2.5 include protecting agricultural land resources and minimising potential for land use conflict.
In this matter, the proposed house site is Bassendean sand of very low fertility. The respondent's preferred house site would require using productive land, albeit a small portion of the productive land. The availability of all productive land is important for the farming activity on the site. This of itself is not a reason for supporting the proposal but it is a relevant consideration.
Sheds and other farm structures are not mentioned in TPS 2 or SPP 2.5 in respect of proposals for a second house. The Tribunal does note however that the house site proposed would result in all structures, including the existing house, being clustered in a single alignment perpendicular to Manning Road served by the single driveway.
A list of approvals for two dwellings provided by the applicant and responded to by the respondent is not considered by the Tribunal to provide a reason why this application might be approved.

The examples cited do illustrate however, that it is important with each application to have regard to all relevant factors, including the topographical characteristics of the site, the agricultural activities carried out and the location of existing improvements. The earlier examples do not create a precedent and if the current proposal were to be allowed because of the factors peculiar to the proposal, the approval would not become a precedent for others to simply cite as a reason why they might be allowed to build a rural workers dwelling at a certain distance from an existing house.
Absent any other characteristics particular to this proposal the proposed separation between the houses of about 270 metres would not be 'close proximity' for the purposes of TPS 2 cl 5.10.3(a)(iv). If the proposed rural workers dwelling site were to be moved north or south parallel to Manning Road then it would be difficult to distinguish this matter from Evers.
Mr Daymond's evidence was that the planning purpose of the close proximity requirement of cl 5.10.3(a)(iv) was, 'to avoid future subdivision pressure and minimise constraints on adjoining uses'. To note is that in cl 5.10.3(a)(iv) close proximity is to be 'as determined by Council', or the Tribunal on review.
The Tribunal considers these planning purposes reinforce the consideration that close proximity is a relative concept and must be considered in the context of all relevant factors including the use made of the land and planning objectives.

Conclusion

In considering Issue 1 from the particular circumstances set out above, the Tribunal has concluded that the answer is 'yes'. For the purposes of cl 5.10.3(a)(iv) the proposed additional dwelling will achieve 'close proximity' with the existing dwelling. The chosen dwelling site will not increase future subdivision pressure or place constraints on adjoining land use.
These objectives are achieved because on this 44.6 hectare lot the proposed house will be in the centre of the Manning Road frontage in line with the existing sheds and house in a cluster of development on an alignment perpendicular to the road. The proposed dwelling will share amenities, particularly the existing crossover and driveway. The resulting development cluster will be arranged so that the area of better soil required for the productive activities on the farm will not be reduced.
Issue 2 was that if the answer to Issue 1 was 'no', should the additional dwelling nevertheless be approved. As the answer to Issue 1 has been found to be 'yes', then the Tribunal has not addressed Issue 2.
Having reached the conclusion set out above in respect to the issues the Tribunal has decided in the particular circumstances of this proposal to allow the application.

Conditions

The respondent provided a schedule of conditions without prejudice to its position to be considered should the Tribunal be minded to allow the application. The applicant questioned the need for proposed condition 2 which required a s 70A notice to be placed on the title under the Transfer of Land Act 1893 (WA). The respondent advised it has consistently applied conditions of this type in respect of rural worker's dwellings.
The Tribunal accepted that it was important that successors in title were provided with notice that the second house was for use only as a rural worker's dwelling consistent with the planning approval.
The Tribunal also raised the need for a condition that identified by distances where the rural worker's dwelling would be sited in the absence of this information on the application sketch.
The Tribunal has determined that the development of the proposed rural worker's dwelling on the site can be allowed.

Orders

For the above reasons the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the Shire of SerpentineJarrahdale of 3 July 2009 is set aside and planning approval is granted for the development of a Rural Worker's Dwelling on No 124 (Lot 813) Manning Road, Hopeland subject to compliance with the following conditions.
(a)Occupation of the Rural Worker's Dwelling shall be restricted to persons engaged in any of the following approved uses on that same property: cottage industry; feedlot; fish farming; horticultural pursuit; pig farming; poultry farming, rural industry or rural use or family members involved in the operation of an agricultural enterprise on that land.
(b)In relation to condition 1 above, a notification under s 70A of the Transfer of Land Act 1893 must be registered over the certificate of title to the land the subject of the proposed development prior to issue of a building licence to notify owners and prospective purchasers of the land that restrictions apply for the use of the Rural Worker's Dwelling as stipulated in condition 1.
The s 70A notification shall be prepared by the Shire's solicitors to the satisfaction of the SerpentineJarrahdale Shire and all costs of and incidental to the preparation of the registration of the s 70A notification, including the Shire's solicitor's costs shall be met by the applicant or the owner of the land.
(c)The Rural Worker's Dwelling is not to be located within 1.2 metres of a septic tank or 1.8 metres of a leach drain or other such setbacks as required by relevant legislation for other types of effluent disposal systems.
(d)All driveway surfaces are to be constructed of a suitable material such as paving, road base or coarse gravel to limit the generation of dust and sediments entering nearby creeks and drainage lines.
(e)The Rural Worker's Dwelling is to share the existing access to the property and driveway and all other existing services where practicable.
(f)All storm water to be disposed of within the property This to be achieved by either soak wells or spoon drains or the use of storm water retention/reuse methods such as rain water tanks or the grading of hard stand areas to lawns and garden beds. Direct disposal of storm water onto the road, neighbouring properties, water courses or drainage lines is not permitted.
(g)The proposed Rural Worker's Dwelling is to be built setback no further than 40 metres from the existing machinery shed and no further than 15 metres from the common access driveway.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER

PIRRET and SHIRE OF SERPENTINE­JARRAHDALE

[2009] WASAT 211

2 OCTOBER 2009