SPANBROEK and SHIRE OF RAVENSTHORPE
[2005] WASAT 104
•13 MAY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928
CITATION: SPANBROEK and SHIRE OF RAVENSTHORPE [2005] WASAT 104
MEMBER: MS M CONNOR (MEMBER)
HEARD: 2 MARCH 2005
DELIVERED : 13 MAY 2005
FILE NO/S: RD 270 of 2004
BETWEEN: JENNIFER SPANBROEK
Applicant
AND
SHIRE OF RAVENSTHORPE
Respondent
Catchwords:
Development - Retrospective planning approval for a "donga" - Amenity impacts on adjoining properties and streetscape
Legislation:
State Administrative Tribunal Act 2004 (WA), s 167(4)(a)
Result:
Application for review is allowed
Retrospective planning approval granted subject to condition
Category: B
Representation:
Counsel:
Applicant: Self represented
Respondent: Mr Weston (Agent)
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS M CONNOR (MEMBER)
REASONS FOR DECISION
Introduction
This is an application by Jennifer Spanbroek (the "applicant") for review of a decision of the Shire of Ravensthorpe (the "respondent") to refuse retrospective planning approval "for the existing donga at the rear of single dwelling" on Lot 537 (No 22) Gibson Way, Hopetoun ("subject land").
The development application was refused by the respondent at its Ordinary Meeting held 16 September 2004. No reasons were given by the respondent for the refusal of the application for development approval. However, the minutes of the meeting include a "Reason for variance to the officer recommendation" stating "Council was concerned that the development could be used as accommodation".
The applicant, by Notice of Appeal dated 10 November 2004, appealed against the respondent's decision. The appeal was initially lodged with the Town Planning Appeal Tribunal, which was abolished as of 1 January 2005. This matter is now to be determined by this Tribunal in accordance with s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA).
The Proposal
The proposal seeks retrospective planning approval for an existing "donga"/shed. A "donga" is an Australian colloquialism to describe a demountable/transportable building which is often used as a make shift or temporary dwelling. The applicant intends to use the donga for storage purposes of garden equipment and tools.
The donga is 9.0m x 3.0m with a wall height of 2.4m and a flat roof. It is setback 17.6m from the street boundary and 1.2m from the western side boundary of the subject land. Both the western and eastern elevations of the donga contains a number identical windows which include two small highlight windows (both 600mm x 400mm) and a larger window (800mm x 600mm), which the top of the window measures approximately 1.8m from ground level.
The Subject Land
The subject land is referred to as Lot 537 (No 22) Gibson Way, Hopetoun and is 905m2 in area. The applicant purchased the property in September 2004.
Structures on the subject land include an existing single storey dwelling, a detached carport/garage located at the rear of the property and the donga/shed.
Background
According to the respondent, the donga was purchased by the previous owner as a second hand unit and placed on the subject land sometime in 1997 and that no approval was sought from the respondent at the time.
The applicant asserted that the respondent had full knowledge of the existence of the donga on the subject land and at no time sought to rectify the situation, until now. This assertion was uncontested by the respondent.
Planning Framework
At the time of the donga being located on the subject land, the operative town planning scheme was the Shire of Ravensthorpe Town Planning Scheme No 4 ("TPS 4"). TPS 4 was revoked and replaced with the Shire of Ravensthorpe Town Planning Scheme No 5 ("TPS 5") in July 2003.
The respondent contended that planning approval for the positioning of the donga on the subject land was required under TPS 4 as cl 2.6 "Permitted Development" of the Scheme did not provide for exemptions to residential development or incidental residential developments.
Given the imprecise time frame surrounding the siting of the donga on the subject land, that being sometime in 1997, it is difficult to establish with any certainty the specific wording of cl 2.6 "Permitted Development" of TPS 4 as an amendment to the scheme was gazetted in August 1997 that modified the list of "classes of development" that may be undertaken without the planing approval of the respondent.
The intended use of the donga by the then owners is also a very relevant factor in determining whether approval would have been required under the Scheme.
On the evidence, the Tribunal is not able to determine the lawfulness of the building under the provisions of TPS 4. Nevertheless, a planning application has been received and under cl 8.4 of TPS 5 there is power to grant retrospective planning approval, providing the development conforms to the provisions of the Scheme and it is on the basis of a properly instituted application and appeal that this matter proceeds.
The subject land is zoned "Residential" with a permitted site density of R10/20 under TPS 5. The objective of the "Residential" zone is to provide for residential development at a range of densities with a variety of housing to meet the needs of different household types through the application of the Residential Design Codes ("Design Codes").
Subclause 4.8.1 of TPS 5 provides specific provisions relating to the "Residential" zone:
"Council, in considering development in the Residential Zone, will give regard to:
i.the quality of architectural design with the objective of achieving a level of integration and consistency with the surrounding built environment.
ii.the materials and colours used on the exterior surface of all buildings with the objective of buildings blending in with the surrounding landscape and environment."
The "Zoning Table" of TPS 5 does not incorporate a separate use class for outbuilding as this type of development is considered to be incidental to residential development.
Pursuant to cl 5.2 of TPS 5, the Design Codes are to be read as part of the Scheme and development of land for residential purposes dealt with by the Design Codes is to conform to the provisions of those Codes. Element 10 Incidental Development ("Element 10") with reference to Element 3 Boundary Setbacks ("Element 3") and Table 1 General Site Requirements ("Table 1") impose the development standards that apply in this instance.
Clause 5.3 of the Scheme deals with the issue of dual or split coding and generally requires that where land in the "Residential" zone is unsewered the development standards of the lower density code is to be apply. In this instance as the subject land is unsewered the R10 development standards will apply.
Subclause 10.3 of TPS 5 provides the powers for the Council to grant approval with or without conditions or refuse an application. However, in considering an application the Council is required to give due regard to the relevant matters set out under cl 10.2. The pertinent matters relating to this application are as follows:
"a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme Area;
c)the requirements of orderly and proper planning including any relevant …
j)the compatibility of a use or development with its setting;
o)the preservation of the amenity of the locality;
p)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal; and
bb)any other planning considerations the local government considers relevant."
Clause 2.2 of TPS 5 enables the preparation of Local Planning Policies that may make provision for any matter related to the planning and development of the Scheme area. Policies may be prepared so as to apply generally or to a particular class or classes of matters and may apply to all or part of the Scheme area. The respondent at present does not have a policy relating to the use and location of dongas within the Residential zone. Mr Weston, who is the Director of Development and Community Services for the Shire of Ravensthorpe, in his evidence alluded to a draft policy intended to "upgrade the standards across the community generally" which will reflect the desire of the respondent not to support dongas or dongastyle developments within the town site or residential areas of the town site. When questioned on the status of the policy, Mr Weston informed the Tribunal that the policy had not been advertised for public comment and that it was "very much in its draft stage". The respondent did not rely on the draft policy as a reason for refusing the proposal.
Planning Issues
The main focus of the respondent's argument centred on the amenity impact of the donga on both the adjoining properties and the streetscape. The respondent contended that the proposal was inconsistent with the principle aims of the Design Codes as it would have an adverse impact on the neighbouring residents and have a negative impact on the streetscape and locality. More specifically, the respondent asserted that the proposal did not satisfy the Performance Criteria nor meet the Objective of Element 10 as the criteria specified in both is that outbuildings not detract from the streetscape or the visual amenity of residents or neighbouring properties.
Mr Weston asserted that the donga was clearly visible from the road and the condition of the building was in a fairly dilapidated state of repair. To demonstrate his assertions he referred to photographs taken by him and submitted to the Tribunal as part of the respondent's "Response Statement." Mr Weston, in his oral evidence, explained that he had recommended that planning approval be granted to the donga subject to two conditions. The intent of these conditions being to improve the condition and enhance the shape of the building. Under cross examination, Mr Weston affirmed that if the general appearance of the donga was improved that it probably would not have an adverse impact on the general area.
The applicant disputed the respondent's assertion that the donga would have a negative impact on the streetscape and produced a series of photographs to demonstrate that the donga was not clearly visible from the street due to its setback from the front boundary and the fact that it is obscured from view by trees and bushes.
On examining the photographs, it would appear that unless standing directly in front of the subject land, the donga would not be viewed from the street as the existing dwelling and substantial vegetation obscure its view. As such, the donga could not be said to affect the streetscape of Gibson Street. It can however, be viewed from directly across the street. One of the photographs submitted by the applicant taken directly across the street from the subject land shows that part of the donga is visible, but the photograph also reveals that the outbuilding on the property at the rear of the subject land is also visible from this position. It would seem that the partial view of a structure of this nature is not out of character with its surroundings.
The respondent did not produce any evidence to show how the amenity of the adjoining properties would be detrimentally affected by the donga. It is clear from another photograph submitted by the applicant that within the immediate vicinity of the subject land outbuildings are common structures which would suggest that the view of an outbuilding from an adjoining property would not be out of character in this setting.
The development complies with the Acceptable Development standards relating to the form and siting of an outbuilding as specified in Element 10 and on the evidence, the Tribunal is satisfied that the development meets the Performance Criteria as set out in Element 10.
Although the donga is not in pristine condition it is to be used as an outbuilding for the storage of garden tools and the alike. In its current form it will function quite adequately as an outbuilding for storage purposes. The Tribunal, is not satisfied on the evidence, that there is a need to upgrade the condition or modify the structure of the donga.
The orders of the Tribunal are as follows:
1.The application for review is allowed.
2.Retrospective planning approval is granted to the existing donga (as detailed in the submission from the applicant dated 12 March 2005) on Lot 537 (No 22) Gibson Way, Hopetoun subject to the following condition:
(a)The donga is to be used as an outbuilding for nonhabitable purposes only.
I certify that this and the preceding 7 pages comprise the reasons for decision of the State Administrative Tribunal.
___________________________
Ms M Connor
Member
0
0
1