Red Rabbit Investments Pty Ltd and Shire Of Busselton
[2009] WASAT 87
•7 MAY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RED RABBIT INVESTMENTS PTY LTD and SHIRE OF BUSSELTON [2009] WASAT 87
MEMBER: MR J JORDAN (MEMBER)
HEARD: 28 - 29 JANUARY 2009
DELIVERED : 7 MAY 2009
FILE NO/S: DR 243 of 2008
DR 298 of 2008
BETWEEN: RED RABBIT INVESTMENTS PTY LTD
Applicant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Town planning Development Refusal Rural Residential zone Landscape value area Rural production designation Subdivision Guide Plan Existing building envelope Relocation of building envelope Increase in size of building envelope New house Tennis court Bridges to island in dam - Jetty from island Impact on landscape Impact on local amenity Impact on neighbours Views to site Second building envelope for shed Application of Outbuildings Policy Size of shed Use of shed Setback from boundaries Clearing of vegetation Landscaping proposals Smaller shed and building envelope previously approved
Legislation:
City of Subiaco Town Planning Scheme No 4
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 51
Shire of Busselton Town Planning Scheme No 5, Amendment 407
Shire of Busselton District Town Planning Scheme No 20, cl 4, cl 13, cl 14(2), cl 16, cl 20, cl 21, cl 21(2)(a), cl 26, cl 27, cl 34, cl 85, cl 96, Table 1, Sch 11, Sch 13
Result:
In the matter of DR 243 of 2008:
The application for review is allowed in part
The decisions of the Shire of Busselton are set aside and conditional planning consent is issued for the relocation and variation of the building envelope and the development of the house
Planning consent is refused for the tennis court and the bridges and jetty on the dam
In the matter of DR 298 of 2008:
The application for review is allowed in part
The decision of the Shire of Busselton is set aside and planning consent is issued for the development of the proposed 300 square metre shed and the associated building envelope subject to conditions that include the building envelope being relocated to comply with minimum setback standards for the side and rear boundary
Category: B
Representation:
Counsel:
Applicant: Mr J Skinner
Respondent: Mr D McLeod
Solicitors:
Applicant: Jackson McDonald
Respondent: McLeods
Case(s) referred to in decision(s):
SPB (Australia) Pty Ltd and Town of Claremont [2003] WATPAT 138
TTH 28 Pty Ltd and City of Subiaco [2008] WASAT 200
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Red Rabbit Investments Pty Ltd owns Lot 92 Shallows Loop, Yallingup. Lot 92 has an area of 7.9 hectares. It is zoned 'Rural Residential', is within a landscape value area but also has the designation 'Rural Production'. A circular building envelope of 20 metre radius has been included toward the south-eastern corner of Lot 92 near remnant vegetation. A vineyard has been developed on the land and there is a large dam which contains an island.
Red Rabbit Investments Pty Ltd filed with the Tribunal two applications for review of decisions made by the Shire of Busselton. The first decision was the refusal an application to relocate and enlarge the building envelope, to develop a new house in the relocated building envelope, to develop a tennis court and to build, on the dam, two bridges to the island and a jetty. The Shire of Busselton refused this application because it did not consider the proposal to be consistent with the objectives of the zoning and the landscape value area.
The second decision was the refusal to approve the development of a 300 square metre shed to be used in conjunction with the vineyard within a second building envelope in the north-west corner of Lot 92. The Shire of Busselton considered the proposed shed to be too large for the zone. It had previously approved a 160 square metre shed and a relocation of the proposed second building envelope away from trees on this part of the lot.
The Tribunal concluded that, in respect of the first application, the proposed development could be allowed in part. The proposed house and the building were approved, but subject to the maximum dimension east-west and north-south being 50 metres and the improvements being within the building envelope. The Tribunal considered this development, appropriately conditioned, would have an acceptable impact on the locality and the neighbours consistent with the objectives for the zone and the site under Shire of Busselton Town Planning Scheme No 20.
The Tribunal did not support development of the tennis court because it would be beyond the building envelope and with the surrounds, fences and lighting would be an unacceptable addition to the landscape. The Tribunal did not support the development of the bridges and the jetty on the dam. An absence of detail led to the conclusion that to allow the development would not be consistent with orderly and proper planning.
In respect of the second application, the 300 square metre shed for use in conjunction with the vineyard and an associated building envelope were approved. This was subject to conditions which included the building envelope being relocated to comply with minimum boundary setback requirements and a landscaping plan. The development of the shed, as approved, was considered to be consistent with the objectives for both the landscape value designation and the rural production designation for the site.
Introduction
Red Rabbit Investments Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), lodged applications for review of two decisions made by the Shire of Busselton (respondent, Shire or Council) to refuse respectively two applications for development approval at Lot 92 of Sussex Location 4207 Shallows Loop, Yallingup (site). The two respective applications for review were:
1)DR 243 of 2008: Review of the refusal by the Council to grant approval for relocation and enlargement of the building envelope; development of a single house in the relocated building envelope; development of a tennis court adjacent to the house; construction of two pedestrian bridges to an island in the dam and a jetty attached to the island (the residential application).
2)DR 298 of 2008: Review of the decision by the Council not to approve an application for creation of an additional building envelope and a 300 square metre machinery shed and associated hardstand, but to affirm an earlier decision approving a 160 square metre shed and a relocated building envelope (the shed application).
Pursuant to s 51 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the two proceedings remained separate but were heard and determined together. The hearings were conducted at Busselton on 28 and 29 January 2009. In the course of the hearing, the site, the general locality and the site from four neighbouring properties were viewed by the Tribunal in the company of representatives of the parties, the applicant and neighbours.
Background
The site historically was part of Sussex Location 4207 which was the subject of subdivision approvals granted in 1997, 2000 and 2001 by the Western Australian Planning Commission (Commission) for about 88 lots. The conditions of subdivision included tree planting and maintenance in areas indicated on a subdivision guide plan and arrangements being made with the Shire for the 'designation of building envelopes on proposed lots as identified on the approved guide plan'.
A note on the 1997 subdivision approval contained an acknowledgement by the Commission that a corresponding rezoning of the land in the form of Amendment 407 to the Shire of Busselton Town Planning Scheme No 5 (TPS 5) had not yet been finalised.
The subdivision guide plan, No 1953/11 dated 21 April 1997, referred to by the Commission, when approved, included 88 lots mostly of approximately 1 hectare, but including four larger lots (including the site) designated 'Rural Production' lots and one larger lot designated 'Tourist Development, Community Facilities and Rural Production'. For the site there was shown:
•an area of proposed revegetation in the north-west corner;
•a circular building envelope in the south-east of the site partially located in remnant vegetation;
•a dam of about 1.4 hectares in the north-north east;
•adjoining the northern and eastern boundaries a pedestrian and cycle path through the locality; and
•the designation 'Rural Production'.
Amendment 407 to the Shire's then TPS 5, when gazetted, had the effect of:
(i)rezoning Sussex Location 4207 from 'General Farming' to 'Special Rural'; and
(ii)inserting an appendix into TPS 5, which contained special provisions relating to Sussex Location 4207.
The provisions inserted into TPS 5 by Amendment 407 included:
1.
(a)subdivision shall be generally in accordance with the subdivision guide plan; and
(b)all dwellings and other buildings were to be confined to the portion of the lot identified as a controlled building location.
2.Not more than one dwelling house may be constructed on any lot … and all dwellings and other buildings so constructed shall comply with the following:
(a)where applicable, all buildings shall be confined to the portion of the lot identified as the controlled building location delineated for the lot;
(b)other than for lots identified on a subdivision guide plan for the purposes of 'rural production', 'community purposes' or 'tourist development', all building developed on a lot shall be contained within a 20 metre radius of lots of less than 1 hectare; or within a 25 metre radius for lots of 1 hectare or larger; as measured from the centre of the main dwelling provided further that where the dwelling is situated within bushland, the gross area cleared for building shall not exceed 1,000 square metres;
…
In September 2003, the Shire cleared the building envelope condition of the 2001 subdivision approval on the basis of a building envelope plan 'Stage 4 Yallingup Hills - Drawing 91614-16 dated 14/10/2002' which showed circular building envelopes of 20 metre radius and an area of 1,257 square metres. For the site, the building envelope was set back 36.8 metres from Shallows Loop.
The original residential application and original shed application were lodged with the Shire in February 2008 and March 2008 respectively. Following discussions with Shire officers, revised plans for the residential application were lodged in May 2008, and for the shed application in July 2008. At its meeting of 13 August 2008, Council refused the residential application and approved that shed application, but subject to the following conditions:
(a)Size of the shed is limited to 160 [square metres] and subject to satisfying all requirements of the Shire's Outbuilding Assessment Policy.
(b)The location of the shed be moved south to a position with a setback of more than 15 [metres] from all boundaries in accordance with Clause 85(14)(c) of the Scheme and to be in a position that does not require the removal of any mature vegetation.
(c)A landscape plan be submitted to meet the objective of screening of the shed from adjoining properties and public spaces, in accordance with [the] Shire of Busselton landscaping policies.
(d)No activities to be undertaken within the shed or its associated hardstands and loading surface area requiring the use of large industrial scale lighting between the hours of 1900 and 0600.
The residential application was then amended and the shed application was amended to the current proposal of 300 square metres orientated southward and both were resubmitted to Council. At its October 2007 meeting, Council reiterated its decision of 13 August 2008 in relation to both applications. At its meeting of 26 November 2008, the Council considered and refused the residential application with the tennis court deleted and a variation of the jetty. The application for review sought from the Tribunal planning approval for the residential application that included the tennis court.
Site and locality
The site has an area of 7.9 hectares, with frontage of about 250 metres to the curve of Shallows Loop at the southern end. The site falls by 20 metres from the south-western corner over about 300 metres to the north-western corner adjacent to a public open space reserve along a creek line. The reserve is part of a vegetated walking trail though the locality which, in part, extends across the northern boundary of the site, with a branch along the eastern boundary.
At the north-eastern corner of the site is a dam, with a surface area of about 1.4 hectares, which includes a small island. In the south-east corner at the top of the slope is a triangular area of remnant vegetation which extends along about half the frontage. In the north-west corner is a patch of trees and undergrowth which was described as mostly regrowth and recent planting as a requirement of the subdivision approvals. At the foot of the dam wall is a 9 square metre shed which contains a pump and chemicals used as part of the commercial vineyard of about 3 hectares on the site.
Rural residential subdivision is spread extensively over this generally undulating locality. To the south of the site on the other side of Shallows Loop, houses are located within remnant vegetation. To the north across the valley are numerous lots of about 1.5 hectares, many including recently-built dwellings. The lot adjoining the site to the west is planted with vines and contains a house. The lots to the north-west, north, and east are between about 2.5 hectares and 0.5 hectare, are generally vegetated, at least on the margins, and many have houses.
Planning framework
The site is zoned 'Rural Residential' in the Shire of Busselton District Town Planning Scheme No 20 (TPS 20 or Scheme) - which replaced the 'Special Rural' zoning of the locality under TPS 5. Clause 4 of TPS 20 sets out the general objectives of TPS 20. These include:
(a)to provide for … orderly and economic development and optimum use of its land and other resources, consistent with the conservation of important natural and man‑made features …
…
(f)to ensure that growth and development of the Shire occurs in a way which preserves existing environmental qualities and minimises adverse environmental impacts;
…
(h)to protect and enhance areas within the Shire identified as being of significant environmental value;
…
Clause 13 of TPS 20 sets out matters the Council shall take into consideration so far as they are relevant to the subject development. These include, in summary at cl 13(1):
(a)provisions of TPS 20, statements of planning policy and the subdivision guide plan;
(b)the impact of the development on the environment;
(c)the effect of the development on the landscape or scenic quality of the locality;
…
(e)character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of the development;
(f)the siting of any building or works on the land in the area to be occupied by that development;
…
(m)provision for landscaping and whether any trees or other vegetation should be preserved;
…
(q)the existing and likely future amenity of the neighbourhood;
(r)submissions made on the proposal;
…
Clause 13(2) of TPS 20 under 'Matters to be considered' states:
A reference in this Clause to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application.
Clause 14(2) of TPS 20 provides that, in the determination of applications, having regard to TPS 20 provisions and the orderly and proper planning and preservation of the amenities of the locality, an application may be refused or approved with or without conditions.
Clause 16 of TPS 20 is concerned with exemptions from planning consent. This states, relevantly:
Notwithstanding any other provision of the Scheme, the erection on a lot of a single house including any extension, ancillary outbuildings and swimming pools does not require planning consent, except where -
…
(d)the development is inconsistent with any other provision of the Scheme;
(e)the development is inconsistent with any provision of a Scheme policy; or
(f)the development is inconsistent with any Development Guide Plan, Subdivision Guide Plan, Structure Plan, Design Guidelines or any other plan or policy adopted by Council.
It was the applicant's contention that if the building envelope for the house is modified and relocated, the proposed dwelling to be located within that building envelope is exempt from planning approval pursuant to cl 16 of TPS 20. The respondent said the dwelling and other development of the residential application together required approval under cl 16(d) and cl 16(f) of TPS 20. It was the respondent's submission that once it was established that planning approval was required, this generates the need to consider the application pursuant to the various clauses of TPS 20 that govern development of this type, including cl 13 provisions, Table 1 of cl 21, cl 27, and, in particular, cl 85(6) which refers to development in a defined building envelope.
The residential application is for a house, tennis court and the lake structures, and the Tribunal is satisfied that planning approval is required for this application. Therefore, this application is not exempt from planning consent.
Clause 21 of TPS 20 states that the objectives and policies of a zone are set out in Table 1. Table 1 of TPS 20 under the heading 'Objectives of the zone' states for the 'Rural Residential' zone:
…
(ii)To ensure that development maintains the rural character of the locality, maintains a high level of residential amenity and minimises disturbance to the landscape through construction of buildings and structures, clearing, earthworks and access roads;
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(iv)To discourage or prohibit development not compatible with the predominantly rural nature and residential amenity of the zone;
…
Clause 21(2)(a) of TPS 20 states:
In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, must comply with the provisions, standards and requirements herein …
The site is within a 'Landscape Value Area', one of a list of areas at cl 20 of TPS 20. Clause 27 of TPS 20 'Landscape Value Area' states:
…
(2)The Council shall not grant consent for the clearing of land or any other development on land identified on the Scheme Maps as being within a Landscape Value Area, unless it has considered:
(a)whether the development will be compatible with the maintenance and enhancement, as far as practicable, of the existing rural and scenic character of the locality;
…
(c)disturbance to the natural environment, including:
(i)visual effects of clearing for development;
(ii)maintenance of rural character;
…
(3)The Council shall not consent to the carrying out of development of land within the Landscape Value Area or on land on or near any ridgelines where, in the opinion of the Council, that development is likely to substantially detract from the visual amenity of the area, having regard to the cumulative visual effect of the development related to other development that may be anticipated in the locality and in the area generally.
(4)Before giving its consent to the erection of a building on land to which this Clause applies, the Council shall make an assessment as to whether it should impose conditions relating to:
(a)the use of prescribed materials on the external surfaces of the building;
(b)the number, type and location of existing trees and shrubs which are to be retained and the extent of landscaping to be carried out on the site; and
(c)the siting of the proposed building.
Clause 34 of TPS 20 is headed 'Discretion to modify development standards'. It states:
(1)Except for development in respect of which the Residential Planning Codes apply under this Scheme, if a development the subject of an application for planning approval does not comply with the standard prescribed by the Scheme or respective policy pursuant to the Scheme with respect to minimum lot sizes, building height, setbacks, site coverage, car parking, landscaping and related matters, the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied that:
(a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;
(b)the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality;
(c)the non-compliance is consistent with the policies and objectives of the relevant Council policy pursuant to the Scheme;
…
The parties made submissions in respect of whether cl 34 of TPS 20 provides discretion to alter the size and location of building envelopes in a subdivision guide plan. The Tribunal is inclined to the view that there might be a case for cl 34 providing discretion to modify the standard at cl 85(6)(a) that buildings be located within a building envelope, but is not persuaded that the discretion extends to modifying the location and shape of the building envelope in the development guide plan. The review of this aspect of the development applications is addressed further below.
Clause 85 of TPS 20 'Rural Residential Zone - Subdivision and Development Requirements' provides:
The following provisions shall apply to all land within the Rural Residential zone in addition to any other provisions which are generally applicable to such land under this Scheme;
(1)Subdivision and development shall be generally in accordance with the Rural Strategy adopted by the Council and the [Commission] for the district and, where applicable, the Development Guide Plan approved and adopted by the Council and the [Commission].
…
(6)(a) Dwellings and outbuildings must be located within any building envelopes or in such other manner that may be identified on the Development Guide Plan referred to in sub‑clause (1) above;
(b)Where a building envelope has not been specified, then all buildings must be contained within a regular square or rectangular area of land no greater than 2,000 square metres or as otherwise required by an adopted and endorsed Development Guide Plan.
…
(10)No development, clearing of vegetation or fencing is to occur within 30 metres of the centre line of any creekline.
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(13)The height of any building shall not exceed the height as may be specified on the relevant Development Guide Plan, or if the height has not been specified, shall not exceed 7.5 metres and in either case shall be a measurement of the perpendicular distance from any point of the building to the natural ground level.
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(15)Unless specified otherwise on the Development Guide Plan, dwellings and outbuildings shall not be located;
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(b)Within 20 metres of any other road or a front or rear boundary;
(c)Within 15 metres of a side boundary.
…
(17)No trees or substantial vegetation may be filled, removed or damaged except for:
(a)clearing associated with approved development within the building envelope;
(b)establishment of firebreaks … ;
(c)establishment of driveways and fencelines in association with approved development;
…
The Shire adopted an 'Outbuilding Assessment Policy' (Outbuildings Policy) effective 2 March 2007. The Outbuildings Policy applies to rural sheds, and relates to lots within most zones, including the Rural Residential zone, under TPS 20. The Outbuildings Policy states within cl 2:
The provisions of clause 16 of [TPS 20] which exempts certain classes of development from the need for Planning Consent, subject to the requirements of that clause, is not varied by this policy.
Clause 4.2 of the Outbuildings Policy provides that 'approval will be granted for a maximum of one outbuilding on a vacant lot that is zoned 'Rural Residential' subject to compliance with TPS 20 requirements for the subdivision'.
Clause 4.4 of the Outbuildings Policy states:
An outbuilding that would result in a total combined outbuilding area greater than permitted in [Table 1] is defined as an 'oversized' outbuilding for the purposes of this policy.
Table 1 of the Outbuildings Policy includes:
| Zoning of Lot | Permitted Total Outbuilding Area | Special Considerations |
| Rural Residential | Maximum of 120 [square metres] or maximum of 160 [square metres] subject to satisfying the requirements of provision 4.5 and with the consent of the adjoining landowner(s). Height to be determined by reference to the Scheme. | Building envelopes, height restrictions and DGPs may apply to these lots and may impose further restrictions. |
Clause 4.5 of the Outbuildings Policy is headed 'Consideration of oversized and/or overheight buildings' and it provides:
'Oversized' or 'overheight' outbuilding may require prior planning consent and in most cases assessment of the application will require consultation with adjoining and affected landowners.
An application will be refused unless it is determined that the outbuilding will not have an undesirable impact when assessed in accordance with the following:
•size of the lot
•zoning of the lot
•material of construction
•height of the proposed building
•visibility from nearby vantage points
•intended use of the building
•effect on adjoining properties and written comments from affected landowners
•effect on streetscape
•any other circumstances and factors affecting the application
•other Scheme matters including, structure plan, DGP, DAPs policies or State Planning Policies.
…
The site is within the area of the State Planning Policy No 6.1 ‑ Leeuwin Naturaliste Ridge Statement of Planning Policy (SPP 6.1). Within SPP 6.1 is a 'landscape classes' map which classifies the degree of significance of landscape character. Part of the site is identified within SPP 6.1 as an area of 'rural landscape significance'. This is an area described as including all of the natural and cultural characteristics which contribute to significant rural landscapes. The northern part of the site is also described as an area of 'natural landscape significance'. SPP 6.1 states:
PS 3.4In areas of natural landscape significance … the significant and natural characteristics will be protected and provide adequate development setbacks …
…
PS 3.6In areas of rural landscape significance … development or change of use should protect the rural character of the land.
Review of decisions on building envelope changes
Central to the consideration of these matters is the subdivision guide plan, Plan 1953/11, referred to above, which was created as a result of Amendment 407 to TPS 5 and which includes 'Controlled Building Locations' also referred to as 'building envelopes'. The respondent provided at the hearing Plan 1953-3-002 dated 28 November 2000 which was a later version of Plan 1953/11 amended by variations to the controlled building locations. Under TPS 5 an application could be made to amend a subdivision guide plan and Council could decide whether to adopt the proposed amendment. The legislative intent of the former TPS 5 was that a subdivision guide plan adopted under it could be the subject of an application to amend and the Council had discretion whether to adopt the amendment.
The subdivision guide plan adopted for the 'Rural Residential' zone, including the site, has straddled TPS 5 and TPS 20. Counsel for both parties submitted that the subdivision guide plan remains relevant pursuant to cl 13(1)(a)(v) of TPS 20, which requires that there be taken into consideration matters of relevance to the development of the land. This is stated to include the provisions of 'any subdivision guide plan, development guide plan, structure plan or other plan or policy endorsed by the Council applying to or that is considered to relate to the land to which the development application relates'. The parties agreed the expressions 'subdivision guide plan' and 'development guide plan' referred to the same document in these matters.
The Tribunal notes that when TPS 5 was revoked, TPS 20 did not replicate for the 'Rural Residential' zone provisions for preparing and amending development guide plans. TPS 20 was silent on this planning control for the zone. If the Tribunal is to accept that the subdivision guide plan prepared under TPS 5 is to continue to apply, then by implication the provisions that enabled the plan to be adopted and amended must also continue to apply as part of the guided development plan. The reference in the submissions of the applicant to cl 26 of TPS 20 'Development Investigation Area and Development Guide Plans' is considered relevant in this context. It is an example in TPS 20 of the controls in place for the introduction of new guided development plans. These controls include capacity to amend a development guide plan.
The Tribunal is of the view that it can, by reasonable implication, be considered that the legislative intent of TPS 20 was not to have existing subdivision guide plans without any of the controls that previously enabled them to be prepared and modified. Otherwise, the existing subdivision guide plans would be required to remain as they were at the gazetted date of TPS 20, 7 September 1999, with no contemplation of modification or review, which, from the background, clearly has not been the case.
The Tribunal considers that an interpretation of TPS 20 that would allow for planning consent to vary or modify a building envelope in a development guide plan and then to have reviewed the decision made, such as the applicant is seeking, would be consistent with the planning principle that a town planning scheme be read as a whole and applied in a practical and commonsense, and not an overly technical way. For TPS 20, this would include the right to apply for consent to amend a subdivision guide plan for the 'Rural Residential' zone and to have the decision made on that application the subject of review under cl 96, such as is available for other zones and development control areas. The Tribunal notes that in at least 21 other instances, the respondent has accepted and determined applications for review of building envelopes in the 'Rural Residential' zone, as referred to below.
The Tribunal has formed the view that an approach similar to amendments of development guide plans in Sch 11 and Sch 13 of TPS 20 is appropriate. That is, if the change would not materially alter the intent of the subdivision guide plan, then the decision of the respondent can be reviewed without reference to the Commission. Any assessment of the merit of the proposal would not be carried out in a vacuum. TPS 20 includes provision set out above for testing any proposed change against the objectives of the zone and the inclusion of the site in a Landscape Interest Area. Following is the consideration of the two applications for review in light of the planning framework and the submissions and evidence of the parties.
Proposed development
The residential application, for the house and tennis court elements, is set out in Jackson Clement Burrows drawings, each dated 27 October 2008:
A0-101Revision B Proposed Site Plan
A0-102Revision B Development Envelope Plan
A0-103Revision B Landscape Enhancement Plan
A1-101Revision B Basement Floor Plan
A1-102Revision B Ground Floor Plan
A1-103Revision B First Floor Plan
A2-101Revision B Elevations - North and East
A2-102Revision B Elevations - South and West
A3-101Revision B Section A
To note is that the proposed jetty is not proposed as shown on these drawings but on Jackson Clement Burrows drawing A4-100D dated 13 November 2008. The proposed shed is also not as shown on these drawings, but as set out on separate drawings referred to in the reference to the shed application below. The residential application comprises:
(a)The relocation of the designated building envelope to be centred approximately 40 metres to the south-west. The shape will change and the area will increase.
(b)A house with an attached pool with site coverage of 684 square metres. The house is two intersecting rectangles built into the slope as it rises to the south and to the west. The rectangles are 6 metres wide, and the north-south rectangle is 60 metres long and the east-west rectangle is 50 metres long. The intersection is offset toward the northern and western ends of the respective rectangles. The north-south rectangle has at the northern end a cellar and theatre below ground. The ground floor has in sequence from the northern end southward into the slope, a pool, an entry foyer at the rectangle intersection, parking for eight cars in a carport and garage, then a storeroom below ground at the northern end. The first floor from north to south has a bedroom, gallery, office, rumpus room, two bedrooms then a laundry and service yard at ground level. The east‑west rectangle is at ground level at the western end, which is a bedroom, then going east, consecutively, a bar, foyer at the intersection, a living, dining and kitchen area and, at the eastern end, a cantilevered 'outdoor room' suspended above ground. The house would not exceed the 7.5 metre height limit. A new driveway from the eastern end of the frontage winds through the remnant vegetation to descend to a hardstand in front of the garage and carport.
(c)A tennis court with fence, lights and surrounds, orientated north-south, of 545 square metres, the closest edge of which is 18 metres west of the house.
(d)A jetty extending northward about 14 metres into the water from the island in the dam as shown on Jackson Clement Burrows drawing A4-100D dated 13 November 2008. Two footbridges extend at angles from the island to opposite banks. Detail of the bridges is not shown on the drawing. The house drawings show one bridge approximately 33 metres long to the west bank, the other 18 metres long to the east bank. At the hearing, it was said the bridges would be 'eco bridges'; that is, wooden structures with no handrails or lighting.
The shed application is set out on Survcon Pty Ltd drawing 5426 dated 12 September 2008 and Jackson Clement Burrows drawings A1‑101(1)F and A1-102(1)A both last modified 10 August 2008. The shed application comprises:
(a)a 300 square metre machinery shed 24 metres long, 12.5 metres wide with a roof height of 4.9 metres, with:
•a wine storage room occupying a quarter of the floor area;
•vineyard machinery and net storage occupying half the floor area;
•pump room, chemical store, office and lavatory occupying a quarter of the floor area;
•one roller door in the eastern elevation; and
•three roller doors in the southern elevation;
(b)a hardstand area with 108 square metres roofed on the southern side and 42 square metres roofed on the eastern side; and
(c)a building envelope 34 metres long and 21.5 metres wide and an area of approximately 746 square metres.
Issues
Issues that arise in respect of the residential application are:
1)Whether the proposed single house, tennis court and building envelope relocation and modification would be:
(a)consistent with the objectives of the 'Rural Residential' zone;
(b)compatible with the maintenance, as far as is practicable, of the existing rural and scenic character of the locality;
(c)acceptable in terms of impact on the visual amenity of adjoining properties and nearby vantage points;
(d)acceptable given that it is inconsistent with cl 85(6)(b) of TPS 20, which requires building areas to be a regular square or rectangular shape and no more than 2,000 square metres in area; and
(e)acceptable given the inconsistency with the building envelope depicted in the subdivision guide plan and building envelope plan.
2)Whether the proposed jetty on the island and associated bridges are:
(a)consistent with the objectives of the 'Rural Residential' zone;
(b)compatible with the maintenance, as far as is practicable, of the existing rural and scenic character of the locality;
(c)acceptable in terms of its impact on the visual amenity of adjoining properties and nearby vantage points; and
(d)acceptable in terms of disturbance to the natural environment, including:
(i)visual effects of clearing for development; and
(ii)maintenance of rural character.
The issues that arise in respect of the shed application are:
1)Whether the proposed shed and its associated hardstand areas are:
(a)consistent with the objectives of the 'Rural Residential' zone;
(b)compatible with the maintenance, as far as is practicable, of the existing rural and scenic character of the locality;
(c)acceptable in terms of its impact on the visual amenity of adjoining properties and nearby vantage points; and
(d)acceptable given the requirement of cl 85(6)(b) of TPS 20 that all buildings be contained within a single building envelope.
2)Whether the removal of vegetation to enable construction of the shed and its associated hardstand areas and low fuel zone is acceptable, having regard to:
(a)the subdivision guide plan for the parent lot from which the subject site was created;
(b)the effect on the visual amenity and rural character of the locality; and
(c)the proximity of a nearby creek line.
Discussion
Residential application: Issue 1 ‑ proposed building envelope relocation and modification, single house and the tennis court
Building envelope and house
In The Australian Model Code for Residential Development, Edition 2, 1990 (Amcord) there is the following definition:
'Building envelope' means a diagram drawn on a lot of a subdivision plan and the requirements of the Responsible Authority defining the limits for the siting … of any dwellings and/or outbuildings, private open space, driveways and/or garages/carports.
It is a common practice to designate building envelopes for lots in rural residential zones at the time of subdivision, as happened in this case. This mostly occurs in the absence of any knowledge of what development might then follow. The Tribunal considers that, while not common, it is acceptable to prepare a development proposal that includes a building of particular design with the associated outbuildings and necessary infrastructure within what is considered to be the appropriate building envelope to accommodate that development, rather than simply design the development to fit within a circle.
In this regard, the Tribunal would expect that the proposed building envelope, consistent with the Amcord definition and common planning practice, would provide for the development, including the house and associated infrastructure development such as water tanks, effluent disposal systems, retaining necessary for the building pad, drains and hardstand associated with parking. It is not usual for the driveway from the road to the house to be within the building envelope. The Tribunal agrees with Mr Allerding, a town planner called by the respondent, that it would be inconsistent with the purpose of a building envelope to design a building of a specific shape and then designate a building envelope that was simply the outline of the site cover of that building; that is, 'the area of a site covered by buildings' (Amcord definition).
The Tribunal has formed the view that the proposed relocation and alteration of the building envelope is minor, as it would not materially alter the intent of the subdivision guide plan. Exhibit 17 was a drawing showing the proposed building envelope would overlap the north‑western margin of the approved building envelope. The proposed building envelope indicated on Drawing A0-102B is an irregular shape of straight sides encompassing the house, attached pool, adjacent hardstand and garden with paths. The drawing states the area is 1,500 square metres, but Mr Robert Paull, a town planning witness for the applicant, gave evidence the area of the building envelope would be 1,452 square metres. The envelope shown has a maximum east-west dimension of 50 metres and north-south dimension of 60 metres.
Designating building envelopes is a common and effective technique of identifying particular locations on a lot within which development can occur consistent with the objectives for the particular zone and any other designation of the lot such as, for the site, 'Landscape Value Area' and 'Rural Production'. The respondent said the building envelope drawn on the site at the time of the subdivision would have been identified because it would have met the appropriate criteria for achieving the zone objectives. The Tribunal is of the view that it does then follow that there are no alternative sites on a lot that might also meet the criteria.
If an alternative building envelope is identified, as the applicant has done in this instance, to be decided is whether it is an acceptable location, shape and size for a building envelope. In noting that other building envelopes have been varied and relocated in this zone, it remains that, in considering such an application for the site, it is necessary to have regard to the objectives and requirements for the 'Rural Residential' zone, for this Landscape Value Area and for 'Rural Production' designation.
The respondent maintained that any alternative building envelope should also be a circle. Exhibit 18 was a sketch produced by the respondent to illustrate that a circle with an area of 3,104.99 square metres would be required for the proposed development, not including the tennis court and this was said to be too great an increase from the approved circle of 1,257 square metres.
The Tribunal considers that if a new envelope is to be allowed it is not required to be a circle, or necessarily a symmetrical rectangle. At Attachment 5 of the witness statement of Mr Allerding (Exhibit 5) is a table which lists 21 instances of the Council varying building envelopes. These had the result of either relocating an envelope or varying its shape from that of a circle to accommodate, in most instances, sheds, water tanks or leach drains, or less commonly, house extensions or a tennis court.
Exhibit 16 was a copy of a letter dated 22 October 2008 which the Shire sent to the applicant inviting submissions on an application to enlarge the building envelope on neighbouring Lot 47 Shallows Loop to accommodate a tennis court and a shed as depicted on an attached plan EVA 232. The Tribunal understands that application may have been unsuccessful. The plan EVA 232 showed an existing irregular shaped building envelope comprising the original 20 metre radius circle with an added trapezoid shape of about 450 square metres around a tank and shed, increasing the total area to about 1,700 square metres.
Noted is that for Lot 47 the respondent had approved a regular shaped extension at the side of the circle to accommodate the shed and tank; it did not require a new focus to be identified and a circular envelope then drawn to include the improvements but also land not required around the full perimeter of the existing envelope. A further example of building envelope shape variation is the Council's August 2008 resolution that it would support, for the reduced sized shed, a building envelope of 'generally rectangular area' of 1,500 square metres. Clause 85(6)(b) of TPS 20 provides for a rectangle or square of 2,000 square metres when no envelope is specified, but does not mention dimensions. The Tribunal would make the comment that a circular building envelope poses problems of making use of areas adjacent to curves and so if the design of the development is known, the approach taken in the examples to defining a building envelope would produce a better planning outcome.
A house is a 'P' use in the 'Rural Residential' zone under the zoning table of TPS 20 and therefore the development of a house would be consistent with the objectives of the zone. No part of the proposed house would be above the maximum permitted height of 7.5 metres from natural ground level and, if sited as proposed, would exceed minimum boundary setback requirements.
Examination of the drawings shows that because of the topography the view to the house from the south would be of the 6 metre wide single storey end wall of the house with the east-west wing, which is at a lower relative height and down the slope partly hidden beyond terracing. The northern elevation shows single storey at the western end, two storeys at the intersection of the two rebuilding rectangles and then stepping down but again becoming two storeys at the eastern end because of the slope. In the eastern and western elevations the house appears to be two storeys at the northern end and at the southern end the first floor appears as a single storey at ground level.
The neighbour about 140 metres to the east currently would have the view of much of the existing building envelope which has a dimension of 40 metres. If the new building envelope has a dimension of 50 metres in a north-south direction, in that sense, the impact would be similar. The current building envelope requires the removal of some remnant vegetation. The proposed envelope does not. The new location, however, has been criticised by neighbours, particularly to the south and east, who say that a house in the new location would intrude into the view of the landscape from their properties and from public and other private vantage points inconsistent with the intent of TPS 20. Particularly mentioned was the view from the open space walkway alongside the site.
Drawing A0-103 B shows landscape enhancement which includes areas of existing flora to be improved and maintained and areas of proposed new planting. This includes planting in and adjacent to the remnant vegetation adjacent to the road and around the boundaries of the public walkway. A landscaping plan to include this planting would be a requirement of any development approval.
The landscaping would reduce the view of the proposed house to an extent similar to glimpses that are obtained of other houses in the locality, particularly those adjacent to the walkway as seen in the viewing of the locality. The driveway to the house through the wooded area would require the removal of some existing vegetation. The provisions of TPS 20 contemplate the removal of some vegetation for access, and with the meander of the driveway to reduce impact, this aspect of the development is considered acceptable. The Tribunal has formed the view that the proposed house development in the proposed building application can be 'compatible with the maintenance and enhancement, as far as is practicable, of the existing rural and scenic character of the locality' (cl 27(2)(a)).
The house is required, under cl 85(6) of TPS 20, to be within a building envelope. The approved building envelope for the site has a diameter of 40 metres. Within that building envelope, a building or accumulation of buildings could extend across the 40 metres. The Tribunal believes there is a point beyond which extending a building envelope would begin to defeat the objectives of the zone. From east to west, the house and the associated retaining wall on the western side extend across the lot for about 56 metres. From north to south, the building extends 60 metres.
It appears to the Tribunal that there is merit in the 50 metre extent supported by the respondent on, it is estimated, Lot 47, and as initially indicated in Amendment 407 for lots of 1 hectare or larger. Such a 25 metre radius circle would have an area of 1,964 square metres. Clause 85(6)(b) contemplates building envelopes of 2,000 square metres. The Tribunal has concluded that the proposed building envelope, if allowed in the location proposed, should have a maximum dimension of 50 metres and this could be a condition of approval. This would also require amendment to the development proposal to ensure all improvements are within the building envelope.
The Tribunal, having regard to objectives and matters to be considered under TPS 20 identified above under planning framework, has found that with appropriate conditions of approval, particularly landscaping, a building envelope to facilitate the development of a house in the location proposed of the size and dimensions discussed would, when compared to the existing envelope, have no more impact on the natural environment, would result in a not dissimilar intrusion into the landscape and would not be incompatible with the rural residential amenity of the zone. The vistas of the vacant site now enjoyed by neighbours will be affected, but the impact, although different from that which would result from development in the original building envelope, is not considered to be so great in the context of the existing development throughout this locality as to warrant the application being refused.
Tennis court
A tennis court requires development approval under TPS 20. The provisions of cl 27 are relevant, particularly cl 27(2), which requires that 'any other development on land identified on the Scheme maps as being within a Landscape Value Area' be 'compatible with the maintenance and enhancement, as far as is practicable, of the existing rural and scenic character of the locality' (cl 27(2)(a)). Mr Paull said that the tennis court would be constructed virtually at grade, with minimum earthworks, and no remnant vegetation was to be removed. The tennis court with its lights and fence are at the level of the first floor of the house because of the topography.
The Tribunal accepts that the agricultural use of the site will require additional work such as wires, posts, access tracks and, at times, nets. These are part of agricultural production as allowed on the site. Any other development, such as the tennis court, fence, lights, associated hardstand and retaining walls, should not extend development beyond the building envelope to ensure the objectives of the zone are addressed. The tennis court is 18 metres and beyond from the house and, if included, would extend the building envelope of the house beyond the dimensions the Tribunal considers acceptable. The Tribunal concluded that by its appearance and the addition to the extent of development, the tennis court would not be consistent with achieving the objectives of the zone. This element of the residential application is not supported.
Residential application: Issue 2 – jetty and bridges
The proposed jetty is shown on Jackson Clements Burrows drawing A4‑100 D dated 3 November 2008. The drawing has only part of a plan view of the footbridges from the island with no detail. From the house drawings it is estimated the bridge to the west bank would be 33 metres long and to the east bank 18 metres long.
The jetty requires consideration of whether it can be allowed as a development beyond the building envelope. The dam is a significant part of the visual character of this landscape value area. It also needs to be available for the applicant for the operation of the vineyard and as part of the enjoyment of the property. The only information before the Tribunal on how the bridges and jetty would be constructed was in oral evidence by Mr Glen Zampatti, a director of the applicant. He referred to 'eco bridges', said to be timber without hand railings. The drawing showed the jetty to be on piles, but there were exchanges with Mr Zampatti as to whether the jetty would be on piles or floating. The applicant asked that the bridges and jetty be allowed, subject to plans being submitted for a building licence generally in accordance with the evidence of Mr Zampatti.
The Tribunal has formed the view that there might be a case for a simple bridge and jetty consistent with the use of a water body and the character of a rural residential area. The dam is a man‑made feature, but consideration of what disturbance there would be to the natural environment is also a consideration. There was no evidence on this.
In the absence of evidence as to how the bridges would look and be constructed, and having regard to conflicting comment on the final form of the jetty and the need to rely on oral evidence on design of a general nature from a non‑expert, the Tribunal has concluded that there is not a sufficient basis for supporting this element of the residential application.
Shed application – Issue 1: shed and hardstand
At its meeting of 13 August 2008, and reiterated at its October 2008 meeting, the respondent approved a machinery shed and associated building envelope in nearly the same location as the development now proposed. As set out in the introduction above, the approval was subject to conditions that required the shed to be reduced in area to 160 square metres, that it be moved to greater than 15 metres from all boundaries, that there not be the removal of mature vegetation and that a landscape plan be prepared. The Tribunal now has before it the current proposal, to be reviewed de novo (s27(1) SAT Act). The respondent's 13 August 2008 decision, however, is seen to illustrate what development was then considered would be consistent with the intent of the zoning and the use of the site.
The building is subject to the Outbuildings Policy and the proposal must therefore be considered as an 'oversized' building. Having regard to the matters to be considered under cl 4.5 of the Outbuildings Policy and consistent with the opinions of the planning witnesses, the Tribunal is of the view that an allowance for floor area over and above that provided for under the Outbuildings Policy is appropriate. The site is larger than most in the locality and has been identified for the purposes of rural production. The evidence of Mr Campbell‑Clause, a vineyard management consultant, was that the vineyard was established in 1999 by his company and has operated since that time under his supervision as a commercial enterprise for different owners. The vineyard produces grapes for quality wine. Mr Zampatti, for the applicant, said that it was the intention to continue this commercial rural production.
The Tribunal does not accept that as a matter of course a shed should be of a size that simply accommodates what an owner can afford to buy by way of machinery and personal possessions. In this instance, the evidence of Mr Campbell-Clause was that to date the owners have relied on contractors to do work with machinery in the vineyard. The machinery to occupy the shed would be used for the purposes of the vineyard and site maintenance, some of it on a regular basis and some of it for specific tasks during the year. The applicant wants to own machinery required for the particular tasks identified by Mr Campbell-Clause without being dependent upon others for that machinery. The shed would also have the capacity to store equipment such as bird nets. There are spaces provided in the proposed shed for the chemicals and the pump housed in the separate 9 square metre shed which would be demolished.
The need for an office and wine storage floor areas were questioned. The Tribunal considers it not unreasonable that the product of a rural enterprise be stored on-site, even if it is turned into this product elsewhere, such as occurs here with the grapes being turned into wine. Reducing the size of the office, it would appear to the Tribunal to have little impact on the building bulk.
The intent of the subdivision guide plan was to single out the site as one of just four lots to be used for rural production and the vineyard has been established and has operated for nearly 10 years. The Tribunal has formed the view that on this site a shed of the size proposed, used as proposed as part of the allowed rural production, would be consistent with the intent of the subdivision guide plan and so would be acceptable on its own building envelope separate from the house if landscaping issues can be addressed.
Shed application – Issue 2: impact on vegetation
The concern raised by Mr Allerding was that the shed as proposed would require the removal of existing vegetation which was planted as a result of a condition imposed on the original subdivision. The neighbour to the immediate west with a common boundary with the site made submissions at the hearing that the appearance of the shed would have an adverse impact on his amenity. From the viewing, the Tribunal believes that parts of the shed, if set back as required by cl 85(15)(b) of TPS 20 may in part be visible, but with landscaping in place, the view the neighbour to the west would have to the shed would be beyond his own sheds, water tanks and vegetation supplemented as part of the landscaping plan. This, the Tribunal considers, would be an acceptable level of impact.
The neighbour to the north, just beyond the public reserve, has a building site elevated so that it is apparent that if the shed is located where proposed and certain trees are removed, then he would be able to see the upper levels of the shed. Attention to this impact is necessary if the shed were to be allowed.
The Tribunal notes that the total area of the building envelope for the shed is about 746 square metres. While it is not clear from the plans, the Tribunal considers it appropriate that there should be within that building envelope the improvements, which include the hardstand, structure, and the retaining walls. At cl 85(15) of TPS 20, setback standards are stipulated. These may be varied under cl 34 of TPS 20 where appropriate. In this instance, the Tribunal does not consider that the standards should be varied to minimise impact on vegetation.
Development can occur anywhere within a building envelope and so the Tribunal is of the view that any building envelope should be set back not less than 15 metres from the side boundary and 20 metres from the rear boundary as required by cl 85(15) of TPS 20. From the evidence it would appear this would allow sufficient setback from the watercourse in the reserve. The watercourse shown on Exhibit 19 appears, as submitted by the applicant, to be an historical course affected by the construction of the dam. If the removal of any of the regrowth is still required with these setbacks, the applicant has undertaken to improve and maintain flora in the setbacks from the boundary and this would include in the landscaping plan replacing any trees removed with five indigenous varieties.
The Tribunal has formed the view that a building envelope with the proposed shed and associated hardstand would be consistent with the objectives of the 'Rural Residential' zone and the rural production designation if located consistent with the required setbacks and subject to the landscaping the applicant has said will be undertaken.
Conclusion
Counsel for the respondent made submissions on the importance of orderly and proper planning as an underlying principle in the planning process. It was said that the process of defining building envelopes in the subdivision guide plan for the Yallingup Hills Estate, which includes the site, was soundly and rationally based, imposed through subdivision approvals and reinforced by provisions of TPS 20. The process should not, it was said, be undermined by an incremental process of qualification in individual planning cases.
The respondent cited SPB (Australia) Pty Ltd and Town of Claremont [2003] WATPAT 138 at [136] where it was concluded that two towers which otherwise had positive features, were not justified as they were excessive when viewed against the planning instruments and recent studies and consideration of planning in the Claremont town centre. Reference was also made to TTH 28 Pty Ltd and City of Subiaco [2008] WASAT 200 where the Tribunal concluded, at [44], that the proposal in that case would be a departure from the properly conceived and consistently applied standards of the City of Subiaco Town Planning Scheme No 4 provisions and relevant policy and so was not consistent with orderly and proper planning.
Attachment 5 of Exhibit 5 is considered to reveal that when an application has been made the respondent has, where appropriate, added to or altered the shape of building envelopes to facilitate additional development and shifted envelopes where presumably it was satisfied a different location was more appropriate. Where the assessment of an application to vary a building envelope has been undertaken against the relevant TPS 20 provisions and policies, this is consistent with orderly and proper planning.
The Tribunal is of the view that more than one site on a rural residential lot might be found to have the attributes appropriate for a building envelope. There are not the same constraints as with a specific site in Subiaco or Claremont where the development would occupy the whole site and immediately abut the development on a similarly constrained site. For a rural residential lot, particularly of the size of the site, if a potential alternative building envelope is identified or development requires a variation to an existing building envelope, orderly and proper planning demands that it be determined whether the proposal would materially alter the intent of the subdivision guide plan and if not, then the proposal be weighed against the planning objectives for the zone as expressed in the relevant TPS 20 provisions and policies.
From the evidence and submissions and the viewing of the site, the Tribunal has concluded that the proposed development can be allowed in part. In respect of the residential application, a building envelope along the lines proposed with the proposed house and associated development can be supported in the location proposed, but subject to the maximum dimension east-west and north-south being 50 metres and the improvements being within the envelope. This development, appropriately conditioned, would have an impact on the locality and the neighbours consistent with the objectives for the zone and the site under TPS 20.
The Tribunal does not support development of the tennis court. The tennis court, its surrounds, fences and lighting would be beyond the building envelope and would be an unacceptable addition to the landscape.
The Tribunal does not support the development of the bridges and the jetty. This is because there was effectively only a concept before the Tribunal. The absence of sufficient detail led to the conclusion that it would not be orderly and proper planning to support the development and rely on the respondent and the applicant agreeing on a design at the point where a building licence is applied for.
In respect of the shed application, the Tribunal accepted that, in circumstances where the site is designated for and used for rural production and there is a history of support for a second building envelope to accommodate a shed serving the rural production on the site, the proposed shed can be supported. The Tribunal has accepted on the evidence that a 300 square metre shed would be an appropriate size for a functioning vineyard. The Tribunal is concerned, however, that the impact of the shed be consistent with the requirements in TPS 20 for the landscape value designation. It is therefore considered necessary that the building envelope for the shed comply with the minimum setback standards for side and rear boundaries. A landscaping plan incorporating the applicant's undertakings on planting would address the removal of any of the existing regrowth in the locality if this is still required with the increased setbacks.
Conditions
In addition to the comments made above on appropriate conditions in the discussion on the issues, the Tribunal would also make the following comments where there is a difference between the parties on the respondent's recommended conditions. The discussion refers to numbers in an amended schedule of conditions provided by the respondent. When imposed the Tribunal has renumbered the conditions again as required. The applicant objected to the reference in conditions that they are to be to the satisfaction of the Shire of Busselton. It was said the common approach was to nominate an officer for the purpose of clearing conditions to prevent delay associated with simple matters having to go to the council. The Tribunal is not clear whether it would be the senior planning officer who would be delegated the responsibility for the clearing all conditions. The Tribunal is satisfied the Shire will have delegation in place for the purpose of clearing conditions.
The respondent made several conditions subject to it issuing a 'permit to use'. The applicant said that requiring compliance within a specific period after completion, together with statutory provisions for the enforcement of conditions and the requirement for a bond, should be sufficient. The Tribunal has found that the conditions of approval, and particularly landscaping, are essential to the acceptability of the development in this location and the conditions as recommended by the respondent in this regard are supported.
Recommended renumbered condition 2 requires that the development commence within two years. The applicant has asked that, for the dwelling, this be four years because substantial development is likely to be delayed while the shed is completed and drawings and engineering assessments are completed in order to prepare plans for the issue of a building licence for the house. The Tribunal is of the view that in the first instance, the approval should be for two years. This is the normal practice and, in the circumstances, the respondent could not reasonably withhold an extension of time if there is a demonstration that steps have been taken to implement the development of the house.
Recommended renumbered condition 3 included a reference to development of the tennis court. The tennis court has been refused.
Recommended new condition 8 required the preparation of a satisfactory landscape plan. Reference to the bridges and walkway on the island are no longer relevant because of the finding of the Tribunal. Required was that the view to the house from the public access way be 'filtered'. The applicant said this is an uncertain term. The Tribunal is of the view that planting in the locations shown on the applicant's drawing AO-103B should be included in the landscape plan. This should have the effect of the view to the house being 'filtered' or 'interrupted' or being glimpses. The intention is considered clear in that a visually impenetrable barrier is not required but views restricted by vegetation are allowed. In respect of a requirement that the areas around the dam be vegetated, these are not part of the application and there is no change to the dam approved, so this aspect of the condition can be deleted.
New condition 11 (condition 10 for the shed application) refers to a bond as a performance guarantee against completion of conditions. The Tribunal agrees with the applicant that there be no less than seven days' notice being given by the Shire of any intended entry onto the site and that authority to enter be limited to Council staff or contractors.
Orders
In the matter of DR 243 of 2008:
1.The application for review is allowed in part.
2.The decisions of the Shire of Busselton dated 8 October 2008 and 26 November 2008 are set aside and the relocation and variation of the building envelope and the development of the proposed house are approved subject to compliance with the following conditions:
(i)The building envelope is to be as shown on Jackson Clement Burrows drawing A0-102B dated 27 October 2008 subject to being amended so that no dimension in an east-west direction or a north-south direction is greater than 50 metres.
(ii)The development is to be in accordance with the approved development plans, Jackson Clement Burrows drawings A0-101, A0-102, A0-103, A1‑101, A1-102, A1-103, A2-101, A2-102 and A3-101 dated 27 October 2008, as amended by the conditions hereunder and subject to being amended so that no part of the house, including the retaining walls required to achieve the building levels for the house, extend beyond the boundary of the building envelope.
(iii)The relocated and modified building envelope can only be utilised to construct the single house design the subject of this approval. The area of the landscaped car park contained within the building envelope cannot be built on other than as approved by this approval. Any significant modifications to the approved development will require further planning consent from the Shire of Busselton.
(iv)This planning consent lapses if the development is not substantially commenced in accordance with the approved development plans, as amended by this decision, within two years of the date of this approval. If the development approval lapses and it is wished to commence or continue with the development, a fresh application must be lodged with the Shire of Busselton.
(v)Plans submitted with the building licence are to show natural ground levels, finished ground levels and finished floor levels to the satisfaction to the Shire of Busselton.
(vi)The height of the single house is restricted to 7.5 metres, measured perpendicularly, above natural ground level at any point.
(vii)The external walls and roofing colours and material shall comprise prescribed materials as identified by the Shire of Busselton District Town Planning Scheme No 20. In this regard, material shall comprise dark tones or dark colouring and be of a low reflective colour, or be painted or similarly treated with dark-toned and dark‑coloured paint or pigment of low reflective quality, to the satisfaction of the Shire of Busselton. Details to be submitted with the building licence application.
(viii)The submission of a landscape plan to the satisfaction of the Shire of Busselton to ensure that the views of the house from the public access way to the east and the roadway are restricted by vegetation and is to include planting in the locations shown on the approved drawing A0‑103B. The plan is to include a plant schedule nominating each species, the spacing of each species, the number of plants required and the size of each plant to be used at the time of planting, together with the anticipated height of each plant at maturity. All landscaping is to comprise a relevant locally native species. The plan must be submitted and approved prior to the issue of a building licence.
(ix)Landscaping is to be established in accordance with the approved landscape plan prior to the issue of a 'Permit to Use' and thereafter maintained to the satisfaction of the Shire of Busselton.
(x)Occupation or use of the development shall not occur until the Shire of Busselton has issued to the owner a 'Permit to Use' for the development.
(xi)Prior to the issue of a building licence, the applicant shall provide a bond in accordance with Shire policy to the value of $5,000 with the Shire of Busselton. The bond may be in the form of cash, cheque or bank guarantee and is a performance guarantee against satisfactory completion of the conditions of planning consent. The performance guarantee shall be refunded in full upon issue of a 'Permit to Use'. Any such bond is to be accompanied by a written authorisation from the owner that that upon no less than seven days' notice from the Shire of Busselton of any intended entry, the Shire of Busselton or its contractors may enter the site to complete or rectify any outstanding work. The Shire of Busselton will recover the bond, or part of the bond, as appropriate, the cost to the Shire of Busselton, including administrative costs, of completing or rectifying any outstanding works.
(xii)The tennis court and associated hardstand and terracing is not approved and are hereby deleted from the approved development.
(xiii)The jetty and footbridges at the dam are not approved and are hereby deleted from the approved development.
In the matter of DR 298 of 2008:
1.The application for review is allowed in part.
2.The decision of the Shire of Busselton dated 8 October 2008 is set aside and the development of the proposed shed is approved subject to compliance with the following conditions:
(i)All development is to be in accordance with the approved development plans Survcon Pty Ltd drawing 5426 dated 12 September 2008 and Jackson Clement Burrows drawings A1-102(1)A and A10101(1)F both last modified 10 August 2008 including any amendments and modifications required by this approval.
(ii)The planning consent lapses if the development is not substantially commenced in accordance with the approved development plans within two years of the date of this decision. If the development is not substantially commenced within that period and it is wished to continue or commence the development, permission may be sought from the Shire of Busselton to extend the period of planning consent.
(iii)Occupation or use of the development shall not occur until the Shire of Busselton has issued to the owner a written 'Permit to Use' for the development.
(iv)The use of the building, the subject of this consent, is at all times to be ancillary to the intensive agricultural use of the lot unless otherwise approved by the Shire of Busselton.
(v)Plans submitted with the building licence application are to show natural ground levels, finished ground levels and finished floor levels to the satisfaction of the Shire of Busselton.
(vi)A stormwater management plan to the satisfaction of the Shire of Busselton is to be submitted prior to the issue of a building licence. The plan is to detail how the creek and creek banks will be protected from run‑off as a direct result of the development the subject of this consent.
(vii)The external walls and roofing colours and material should comprise prescribed materials as identified by the Shire of Busselton District Town Planning Scheme No 20. In this regard, materials will comprise dark tones or dark colouring and be of a low reflective quality, or be painted or similarly treated with a dark-toned or dark‑coloured paint or pigment of low reflective quality, to the satisfaction of the Shire of Busselton. Details are to be submitted with the building licence application.
(viii)The submission of a landscape plan to the satisfaction of the Shire of Busselton to ensure that:
(a)any vegetation removed to accommodate the shed is replaced by a ratio of five replacement plants for every plant removed;
(b)replacement of any trees to be a minimum of 45 litre or 100 litre bag stock; and
(c)the machinery shed will be adequately screened from view from the public access way to the north, west and east of the subject property. The plan should show: infill planting of appropriate screening plants and trees to the north of the shed to ensure that, upon maturity of the planting, the shed is screened from view from the public accessway; a screen of vegetation to the east of the proposed shed; and two rows of trees between the shed and the western boundary, situated so as to comply with fire requirements, and the two rows staggered to provide maximum screening between the shed and the lots to the west.
The plan should indicate the location and species of all vegetation to be removed and/or retained in the immediate proximity of the shed location. The plan should also include a plant schedule nominating each species, the spacings of each species, the numbers of plants required; and the sizes of each plant to be used at the time of planting, together with the anticipated height of each plant at maturity. All landscaping is to comprise a relevant locally native species. The plan must be submitted and approved prior to the issue of a building licence.
(ix)Landscaping to be established in accordance with the approved plans prior to the issue of a 'Permit to Use' and thereafter maintained to the satisfaction of the Shire of Busselton.
(x)Prior to the issue of a building licence, the applicant shall provide a bond in accordance with Shire policy to the value of $5,000 with the Shire of Busselton. The bond may be in the form of cash, cheque or bank guarantee and is a performance guarantee against satisfactory completion of the conditions of planning consent. The performance guarantee shall be refunded in full upon issue of a 'Permit to Use'. Any such bond is to be accompanied by a written authorisation from the owner that upon no less than seven days' notice from the Shire of Busselton of any intended entry, the Shire of Busselton or its contractors may enter the site to complete or rectify any outstanding work. The Shire of Busselton will recover the bond, or part of the bond, as appropriate, for the cost to the Shire of Busselton, including administrative costs, of completing or rectifying any outstanding works.
(xi)The existing small machinery shed is to be removed upon the issuing of a 'Permit to Use'.
(xii)Apart from the vegetation to be removed as part of the approved development of the machinery shed, no other vegetation is to be removed other than in accordance with the approved plan unless prior approval is given by the Shire of Busselton.
(xiii)The building envelope is to be set back not less than 15 metres from the western boundary and set back not less than 20 metres from the northern boundary of the site.
I certify that this and the preceding [99] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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