Richardson and Shire Of Serpentine-Jarrahdale
[2007] WASAT 73
•29 MARCH 2007
RICHARDSON and SHIRE OF SERPENTINE-JARRAHDALE [2007] WASAT 73
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 73 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:425/2006 | 12 FEBRUARY 2007 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 29/03/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY COLIN RICHARDSON SHIRE OF SERPENTINE-JARRAHDALE |
Catchwords: | Town Planning Approval to commence development Fair and reasonable planning conditions Amenity Precedent Building envelope Fire management plan Acceptable development provisions Incidental development Outbuilding Outdoor living area Common boundary Minimum setback |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 5.12.2, cl 7.1, Appendix 4A, Appendix 5 State Administrative Tribunal Act 2004 (WA), s 24 |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988) Hill v State Planning Commission (1994) 10 SR(WA) 354 |
Orders | On the application determined by Senior Sessional Member Lloyd Graham on 29 March 2007, it is ordered that:,1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RICHARDSON and SHIRE OF SERPENTINE-JARRAHDALE [2007] WASAT 73 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 12 FEBRUARY 2007 DELIVERED : 29 MARCH 2007 FILE NO/S : DR 425 of 2006 BETWEEN : BRADLEY COLIN RICHARDSON
- Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town Planning - Approval to commence development - Fair and reasonable planning conditions - Amenity - Precedent - Building envelope - Fire management plan - Acceptable development provisions - Incidental development - Outbuilding - Outdoor living area - Common boundary - Minimum setback
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
(Page 2)
Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 5.12.2, cl 7.1, Appendix 4A, Appendix 5
State Administrative Tribunal Act 2004 (WA), s 24
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ms M Kenny (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Shire of Serpentine-Jarrahdale
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988)
Hill v State Planning Commission (1994) 10 SR(WA) 354
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Shire of SerpentineJarrahdale to approve the construction of a shed and attached carport at Lot 604 (No 139) Bruns Drive, Darling Downs. Two of the ten conditions of approval (conditions (1) and (3)) were unacceptable to the applicant.
2 The Tribunal examined the respective positions of the parties together with the background to the matter, the legislative and policy provisions, the substance of an objection from the adjoining neighbour to the south and matters relating to fire management and "building envelopes".
3 The Tribunal found no valid planning reason against proposed conditions (1) and (3), and found that they were fair and reasonable in the circumstances of this case.
4 The application for review was dismissed.
Introduction
5 The application for review, dated 27 November 2006, was lodged by Mr Bradley Colin Richardson (applicant) against a decision of the Shire of Serpentine-Jarrahdale (respondent) on 19 October 2006 to approve the construction of a shed and attached carport subject to ten conditions. Two of these conditions were unacceptable to the applicant.
6 The application was made under s 252(1) of the Planning and Development Act 2005 (WA) and specifically related to conditions (1) and (3) of the approval:
"1. The shed is to be located a minimum of 7.5 metres from the southern boundary ...
3. Two rows of native shrubs and trees are to be planted between the southern side of the shed and the southern boundary of the lot to the satisfaction of the Shire."
Subject Land
7 The subject land, which is part of the so-called Claremorris Estate to the west of the South Western Highway, can be described as
(Page 4)
- Lot 604 (No 139) Bruns Drive, Darling Downs. It has an area of 4000 square metres and there is an existing residence on the land.
8 From photographic evidence attached to bundle of documents filed by the applicant pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it appears that the subject land slopes gently from east to west and is essentially open in nature, sandy and with very little vegetation. There are, however, a few remnant native trees on the property.
9 It also appears that the fencing between the subject land and the neighbouring properties to the south, north and west are open in construction with very little visual privacy between owners.
Legislative framework
10 The subject land is zoned "rural" under the Metropolitan Region Scheme (MRS) and "rural living A" under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2).
11 It falls within a Landscape Protection Policy Area (LPPA) and is covered by Local Planning Policy 8 - Landscape Protection (LPP8) and Local Planning Policy 17 - Residential and Incidental Development (LPP17).
Respondent's position
12 The respondent's position is outlined in its Statement of Issues, Facts and Contentions dated 18 January 2007. They argue:
(a) By virtue of the height and bulk of the proposed shed and its proximity to the outdoor living area on the adjoining neighbour's property, and the lack of vegetative screening, that the shed is likely to affect the amenity of the neighbour.
(b) The shed does not comply with the acceptable development provisions of LPP17 for "outbuildings".
(c) Vegetative screening of the shed is required to comply with the provisions of TPS 1 relating to the LPPA, and also LPP8, and thereby retain the existing amenity of the adjoining property to the south.
(d) There is an abundance of space on the lot to enable the relocation of the shed to achieve a greater distance from
- the southern boundary, and the minimum 1.8 metres separation between the shed and the existing effluent disposal system behind the house.
- (e) There is sufficient space on the lot to allow for the planting of screening vegetation between the shed and southern side boundary whilst still allowing adequate space for the required 3 metre firebreak.
(f) Additional tree planting is required to screen the proposed shed and replace those native trees removed on the subject land without authorisation.
Applicant's position
13 The applicant's position is outlined in his Statement of Issues, Facts and Contentions received at the Tribunal on 31 January 2007. He argues:
(a) The adjoining neighbours have already planted two rows of trees to screen the proposed shed.
(b) Similar size sheds have been allowed to be built in the estate within 5 metres of an adjoining boundary.
(c) The proposed vegetation screening will clash with firebreak limits and building vegetation clearances.
(d) It would not be possible to drive the motor home or back a trailer into the proposed shed without driving over the septic system.
(e) With water restrictions in place, and no bore, it would be difficult for the proposed two rows of trees to survive.
Planning issues
14 The principal planning issues are:
(a) Are conditions (1) and (3) imposed by the respondent fair and reasonable in the circumstances of this case?
(b) Would the amenity of the adjoining neighbour to the south be reduced, maintained or improved as a result of the imposition of conditions (1) and (3)?
(Page 6)
Assessment of proposal
Background
15 The applicant purchased the subject land in mid-June 2006 within the Claremorris Estate; some 30 kilometres south of the Perth Central Business District.
16 On 9 August 2006, an application for approval to commence development (Form 1) was lodged for the construction of a shed as required under TPS 2. The value of the development was estimated at $11 400.
17 The proposed development includes a 162 square metre shed (18 metres x 9 metres) with an attached carport of 54 square metres (6 metres x 9 metres). The overall dimensions of the combined structure will be 24 metres x 9 metres and will predominantly fall outside the specified "building envelope".
18 The intention of the applicant is to locate the gable roof shed, with two front roller doors and attached carport, some 5 metres from the southern boundary and positioned so as to allow ease of access to and from a driveway stretching from the front of the subject land along the south side of the existing house to the structure itself.
19 An important consideration is to keep the proposed development well clear of an existing effluent disposal system and, for that reason, it is located so that the eastern extremity of the carport is 10 metres from the residence.
20 As part of the assessment the views of nearby owners were sought. There were four letters of support and one letter of objection from the adjoining owner to the south (135 Bruns Drive).
21 On 17 October 2006, the Sustainable Development Committee, acting under delegated authority, approved the development subject to conditions.
Legislative and policy provisions
22 Under cl 5.12.2 of TPS 2 the "rural living A" zone is intended to cater for rural/residential development on a range of lots between 4000 square metres to 1 hectare. The area of the subject land just meets the minimum requirement of 4000 square metres.
(Page 7)
23 Clause 7.1 addresses the general appearance of buildings and preservation of amenity in this way:
"No person shall without the approval of the Council erect or commence to erect a building which by virtue of its colour or type of materials, architectural style, height, bulk or ornamental or general appearance has, in the opinion of Council, an exterior design which is out of harmony with exterior designs of existing buildings or is likely to injure the amenity of the locality."
24 Under Appendix 5 the objectives pertaining to the LPPA, as outlined in the bundle of documents supplied by the respondent pursuant to s 24 of the SAT Act, require that the development of buildings within the policy area need the planning consent of Council, must be sited and constructed to take advantage of the topography and the vegetation to limit visual intrusion, and be accompanied by such additional tree planting and landscaping as the Council considers necessary to achieve the objectives of the policy. Also, that the tree cover of the scarp is to be increased by the retention of existing trees wherever possible and additional tree planting is to be incorporated into every development application approved within the policy area.
25 Appendix 4A outlines certain planning provisions covering the "specified area" of Pt Lot 12 South Western Highway and Lot 1 Eleventh Road, Byford. The subject land falls within the "specified area" which requires, amongst other things, the preparation and implementation of a Fire Management Plan.
26 Under LPP8, which was adopted by Council on 23 December 2002, the various objectives of the policy to protect the landscape are outlined along with matters relating to vegetation requirements, building appearance, tree preservation and fire control.
27 Within these requirements there is again an emphasis on the preservation of existing trees and additional tree planting, along with the management of fuel loading to minimise the risk of fire.
28 Under LPP17, which was last updated on 27 November 2006, the objectives and acceptable development provisions are outlined for residential and incidental development along with such matters as the requirements for gaining approval for buildings outside the specified "building envelope".
(Page 8)
29 The policy applies to "incidental development" such as sheds and carports and includes the following:
(a) the maximum combined total floor area of all outbuildings in the rural living A zone is 150 square metres;
(b) the maximum wall height in the zone is 3.5 metres;
(c) the maximum roof height in the zone is 5.0 metres; and
(d) the minimum side and rear setback from the lot boundary is 7.5 metres.
30 In the case of variations to the maximum there is a requirement to consult with adjacent neighbours and, where the variation exceeds 20% and objections have been received, the matter is to be determined by specified senior officers or referred to the Sustainable Development Committee or Council for determination.
31 Under LPP17, if a proposed development falls outside a "building envelope", there is also a requirement for consultation with neighbours with the matter finally determined as in [30] above.
The matter of objections
32 In a letter of objection from Mr SG Marshall, the owner of the adjacent property to the south at 135 Bruns Drive, the following points are made:
(a) Based on the boundaries of the "building envelope" on Lot 604 it was assumed that the views from the house at 135 Bruns Drive would not be blocked by the construction of a shed in the position proposed.
(b) If the proposed development is allowed the view will not only be of a shed 18 metres by 9 metres but also an open bay carport that will add to the length by another 5 metres.
(c) The height of the proposed shed is of concern as a sand pad has been constructed which, at the rear, is at least 1 metre high.
(d) At present there is a 15 metre bus and 15 metre sea container located between the house on the subject land and the common boundary.
(e) The owner of the subject land currently conducts motor trimming from his existing garage.
(Page 9)
- (f) The procedures to obtain an approval to construct a building outside a "building envelope" are understood [by the Marshalls], because similar procedures were followed at 135 Bruns Drive two years ago.
(g) If possible the proposed structure should be either reduced in size and moved further back towards the rear fence or reduced in size and moved preferably to the other side of the block.
33 Based on photographic evidence provided by the applicant as part of the applicant's s 24 bundle of documents, it appears that both the residence and the outside shed with water tank on Mr Marshall's property are located well clear of the common boundary, but their outdoor living area with spa comes to within 4 metres of the common boundary.
The matter of fire management and "building envelopes"
34 A "fire management plan" (FMP) was included as part of the applicant's s 24 bundle of documents. It includes a "building envelope and setback plan" dated August 2001 which was prepared by a consultant for a company named Prolay.
35 The Tribunal assumes that the FMP was prepared by the original subdivider to create the lots within the estate, and that it was subsequently adopted by Council in accordance with Appendix 4A of TPS 2.
36 Under cl 5.3 (Dwelling Construction) of the FMP, it states:
"Building envelopes have been located to minimise bushfire risk. ... Building envelope locations have been approved by the Council as part of the Subdivision Guide Plan."
37 An examination of the plan attached to the FMP shows that on the subject land the "building envelope" is located some 12 metres back from the front boundary and some 5 metres back from both side boundaries. The envelope measures some 30 metres wide (north-south) and some 50 metres long (east-west).
38 In the respondent's Statement of Issues, Facts and Contentions it states:
"2.3 The property contains a building envelope within which all development is required to be contained unless otherwise approved in writing by the Shire."
(Page 10)
39 Based on the dimensions of the subject land, and information before the Tribunal, it is clear that the proposed development could not be contained within the "building envelope" but could easily be contained between the western extremity of the envelope and the western boundary of the subject land - a distance of some 47 metres to 48 metres.
40 For all practical purposes it appears that "building envelopes" form a useful function in locating a residence on a lot, but that any large outbuilding in the estate is most likely to have to be positioned outside the "building envelope" in part or whole.
The matter of "fairness" - planning conditions
41 The matter of fairness in imposing a planning condition was addressed in Hill v State Planning Commission (1994) 10 SR(WA) 354 where the reasons advised that a planning condition must satisfy two special tests; namely that the condition must fairly and reasonably relate to the development and must be reasonably capable of being regarded as relevant to the implementation of planning policy. However, an additional rider was also added; namely that conditions must not be so unreasonable that no reasonable planning authority could have imposed them.
42 All that the Tribunal needs to be satisfied with is that, in the circumstances of this case, the planning conditions imposed meet the criteria outlined in [41] above.
Conclusions
43 The application for review was lodged against a decision of the Shire of Serpentine-Jarrahdale to approve the construction of a shed and attached carport subject to 10 conditions. Two of these conditions relating to a side setback of 7.5 metres, and the planting of trees and shrubs within that setback area, were unacceptable to the applicant.
44 In undertaking this review the Tribunal examined the respective positions of the parties together with the background to the matter, the legislative and policy provisions, the substance of the objection from the adjoining neighbour to the south and matters relating to fire management and "building envelopes".
45 The position of the applicant essentially relies on the argument that other similar size sheds have been allowed to be built within 5 metres of an adjoining boundary and, if forced to relocate the development some
(Page 11)
- 7.5 metres from the southern boundary, that it would not be possible to access the shed without driving over the effluent disposal system.
46 On the other hand the respondent argues that the height and bulk of the proposed development, and lack of vegetative screening, is likely to affect the amenity of the adjoining owner to the south and that a 5 metre side boundary setback does not accord with the acceptable development provisions of Local Planning Policy No 17 with respect to "outbuildings". It also argues that there is an abundance of space on the lot to allow the proposed development to be relocated.
47 In examining this matter it appears that at the present time the existing motor home is parked out in the open and the proposed shed will allow it, and a boat, to be safely located under cover. It is also argued by the applicant that a 4WD vehicle cannot be accommodated in the existing garage and would need to be parked under the proposed carport.
48 What appears to have happened to date is that a large sand pad has been constructed without development approval to accommodate the proposed development, and also the construction in part or whole of an approach driveway. According to the respondent, several trees were removed to allow for the driveway.
49 In the officer report to the Sustainable Development Committee of 17 October 2006 the following comment was made:
"The subject shed complies with the height specifications contained in Local Planning Policy LPP17 for outbuildings as the wall height is 3.1 metres and the policy allows a maximum of 3.5 metres. The floor area of the shed exceeds the maximum (150 m2) set by LPP17 by 12 m2. However, this is a minor variation of only 8%.
The visual impact of the shed can be reduced by the planting of shrubs. There are many fast growing native [shrubs] that will grow 2-3 metres in height within 2 years such as some type of grevilleas. The neighbour could also carry out planting on their own property to preserve their privacy and visual amenity. There is more than adequate room to do this without compromising solar access as their dwelling is set back approximately 18 metres from the boundary they share with Lot 604."
(Page 12)
50 One difficulty the Tribunal has had with this matter is that it appears from photographic evidence supplied by the applicant that the outdoor living area, with spa, on the adjacent property to the south was built to within 4 metres of the common boundary. Also, the development on the adjacent property to the north has been approved to within 3.8 metres of the common boundary.
51 Just why such approvals would have been issued contrary to the provisions of LPP17 requiring a minimum setback of 7.5 metres from side boundaries for Dwellings, Outbuildings and Incidental Structures is not at all clear, and there is no information before the Tribunal on the relevant circumstances.
52 However, as explained in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988) precedent is not to be treated as a "stand alone" argument, and is but one factor to be taken into account. In other words the fact that nearby structures are well within the 7.5 metre minima is not a reason in itself to allow a concession from the acceptable development provisions of LPP17 in this case.
53 What the Tribunal has before it in this case is a proposal to construct a shed and carport on a property that could, with some additional consolidated fill, be easily relocated to accord with the required minimum 7.5 metre distance from the side (southern) boundary and pushed back further to the west (some 12 metres according to the evidence of Mr Richardson) and away from the effluent disposal system. This would allow the several vehicles to be manoeuvred into and out of the proposed shed and carport and the proposed structure would still meet the 7.5 metre minimum setback from the rear boundary of the subject land.
54 The fact that the "building envelope" comes within 5 metres of the side boundaries on the subject land in the FMP (although Ms Kenny disputed this figure in her evidence before the Tribunal and claimed that it was in fact 7.5 metres from the southern boundary and 5.0 metres from the northern boundary under Council policy) would not of itself be a reason to allow the proposed development to come within that distance. This is particularly so as most of the proposed structure falls outside the "building envelope", and all of it would if the shed and carport were pushed further to the west.
55 Again, the Tribunal can find no valid reason why the requirements of condition 3 of the respondent's approval of 19 October 2006 in terms of tree and shrub planting should not be met; particularly as it accords with
(Page 13)
- the intent of both TPS 2 with respect to landscape protection within the LPPA and LPP8. Also, a 7.5 metre side boundary setback would allow adequate room for the planting of two rows of native shrubs and trees as well as a 3 metre firebreak.
56 The Tribunal does not accept that such landscaping would, of itself, pose an unacceptable fire risk.
57 In an overall sense the Tribunal accepts that proposed conditions (1) and (3) imposed by the respondent are fair and reasonable in the terms expressed in [41] above and that the amenity of the adjoining neighbour to the south would be improved as a result of the imposition of proposed conditions (1) and (3).
58 The Tribunal also accepts that the relocation of the proposed development, as outlined in [53] above, can be accommodated within proposed condition (4) of the approval of 19 October 2006 which requires the lodgement of an amended site plan with Council.
Orders
59 For the foregoing reasons the orders of the Tribunal are:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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