STOCKDALE and SHIRE OF MUNDARING
[2006] WASAT 356
•6 DECEMBER 2006
STOCKDALE and SHIRE OF MUNDARING [2006] WASAT 356
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 356 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:218/2006 | 8 SEPTEMBER 2006 | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 5/12/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | AILEEN STOCKDALE SHIRE OF MUNDARING |
Catchwords: | Outbuilding Amenity Orderly and proper planning Visual impact |
Legislation: | Planning and Development Act 2005 (WA), s 242, s 252(1) Shire of Mundaring Town Planning Scheme No 3, cl 1.12(c), cl 1.13(4), cl 4.39, cl 8.14 |
Case References: | Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Nil |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : STOCKDALE and SHIRE OF MUNDARING [2006] WASAT 356 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 8 SEPTEMBER 2006 DELIVERED : 6 DECEMBER 2006 FILE NO/S : DR 218 of 2006 BETWEEN : AILEEN STOCKDALE
- Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Outbuilding - Amenity - Orderly and proper planning - Visual impact
Legislation:
Planning and Development Act 2005 (WA), s 242, s 252(1)
Shire of Mundaring Town Planning Scheme No 3, cl 1.12(c), cl 1.13(4), cl 4.39, cl 8.14
Result:
The application for review is dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr David Bazen (Acting as Agent)
Respondent : Mr Mark Luzi (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Shire of Mundaring
Case(s) referred to in decision(s):
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review has been lodged by Mrs Aileen Stockdale against a decision of the Shire of Mundaring to refuse a planning application for a large outbuilding measuring 100 square metres in area with a ridge height of 4.2 metres. The outbuilding is essentially for the storage of seven vintage vehicles.
2 In examining this matter, the Tribunal has had regard to the provisions of the Shire's Town Planning Scheme No 3 and its Outbuildings Policy, together with the likely effect of the proposal on the amenity of nearby residents, and whether the outbuilding would be in the interests of orderly and proper planning.
3 The opinion of objectors to the proposal, and the applicant's response to those objections, were also examined.
4 In the view of the Tribunal, and having regard to the particular circumstances of this case, the construction of such a large structure in close proximity to nearby homes would be visually intrusive, incongruous in the environmental setting, at odds with the existing amenity and contrary to the interests of orderly and proper planning.
5 The application for review is dismissed.
Introduction
6 The application for review, dated 4 July 2006, was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) and lodged by Mrs Aileen Stockdale (applicant) against a decision of the Shire of Mundaring (respondent) on 23 May 2006 to refuse a proposed outbuilding at No 6 (Lot 31) Oxley Place, Darlington. The decision was conveyed to Mr and Mrs Stockdale on 12 June 2006.
7 The Council resolution was:
"That
1. Council note the attached submissions received and adopt the recommended response to those submissions prepared by Shire staff.
(Page 4)
- 2. Council refuse the application for planning approval for the proposed outbuilding on No 6 (Lot 31) Oxley Place, Darlington for the following reasons:
1. Noncompliance with the Shire's Outbuilding Policy.
Footnote
1. The applicant be advised that Council has the ability within Clause 4.39 of Town Planning Scheme No 3 to approve the proposed outbuilding. However, in this instance, it is not considered appropriate to do so, due to the noncompliance with the Shire's Outbuilding Policy."
8 The subject land is described on Certificate of Title Volume 1311 Folio 898 as Lot 31 on Plan/Diagram No 008505. It has a frontage of approximately 62.58 metres, a depth of 95 metres and an area of 2226 square metres.
9 The land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" in the Shire of Mundaring Town Planning Scheme No 3 (TPS 3 or the Scheme). It has a density coding of R5.
10 There is an existing dwelling on the property, a shed (garage) of 42.4 square metres and two small outbuildings of 24.88 square metres and 4.32 square metres.
Respondent's position
11 The respondent's position is outlined in the Statement of Issues, Facts and Contentions dated 2 August 2006. It argues:
(a) In accordance with TPS 3 and unless otherwise approved by Council, all outbuildings on lots below 5000 square metres shall not have a combined area greater than 65 square metres.
(b) The Outbuildings Policy (Policy) provides guidance to Council on maximum floor area, height and location. The application was assessed against those criteria.
(Page 5)
- (c) For a lot zoned "Residential" R5, Table 2 of the Policy states that outbuildings will generally not be approved where the total area of all outbuildings on the lot exceeds 100 square metres.
(d) Council had previously resolved to refuse an outbuilding on the property with an area of 85 square metres. In addition, a proposal that was almost identical to that the subject of this review had been subject to advertising six months previously. Strenuous objection was received from surrounding property owners, principally on the basis that the proposed outbuilding would adversely impact on their residential amenity. The application was refused.
Applicant's position
12 The applicant's position is outlined in a Statement of Issues, Facts and Contentions received by the Tribunal on 16 August 2006. It argues:
(a) The public submissions received by Council from two previous advertising periods contained incorrect information, false assumptions and blatant lies. Exposure to these documents has served to adversely skew Council's assessment of the planning merits of the application, including amenity.
(b) The new application addresses all legitimate and reasonable concerns raised by public submissions.
(c) The proposed outbuilding is 100 square metres, bringing the total area of all outbuildings to 142 square metres, only 42 square metres greater than that allowed by the Policy.
(d) The total area of all outbuildings covers only 6.4% of a 2226 square metre lot. This is not unreasonable given that all buildings on the property have been spaced and aligned to prevent crowding.
(e) The selected building materials will blend with the surrounding environment in line with policy and augmented with extensive planting to protect the amenity.
(Page 6)
- (f) The proposed outbuilding has been located to the rear of the property and oriented to minimise any potential visual impact on the neighbouring properties and surrounding locality.
(g) The storage of items within the outbuilding provides a significant improvement to amenity, as opposed to outdoor or makeshift storage.
(h) Council has approved variations to the Policy on many prior occasions elsewhere, having regard to amenity and impact on neighbouring properties.
Planning issues
13 The principal planning issues are:
(a) Does the proposal accord with relevant statutory and policy requirements?
(b) If the answer to (a) is in the negative, is there still sufficient reason, based on the merits of the case, to set the decision of the respondent aside?
Assessment of proposal
Background
14 The background to this matter is outlined in the witness statement of Mr Jeremy Hofland, a qualified town planner and Manager of Planning Services at the Shire of Mundaring. He broadly explains:
(a) An application (first application) for planning approval for the proposed outbuilding was lodged with the respondent in November 2005. The structure consisted of a floor area of 100 square metres, a wall height of 2.4 metres and a ridge height of 4.2 metres. An existing outbuilding of 42 square metres was to be retained, whilst two smaller outbuildings were to be removed.
(b) As the proposal required Council approval to vary the maximum standards in the Policy, it was advertised. Five objections were lodged.
(c) At the Council meeting on 28 February 2006, the matter was deferred pending a new proposal.
(Page 7)
- (d) The new proposal (second application) showed a smaller floor area of 85 square metres and a reduction in ridge height to 4.0 metres. The setback to the adjacent No 4 Oxley Place was increased from 2.0 metres to 4.1 metres.
(e) As the second application still exceeded the maximum standards in the Policy, it was also advertised. Five objections were lodged.
(f) At the Council meeting of 23 May 2006, the second application was refused on the grounds of noncompliance with the Policy.
(g) In June 2006, a further application (third application) was lodged for an outbuilding of 100 square metres with a wall height of 2.5 metres and a ridge height of 4.2 metres. The third application included additional information on the need for the outbuilding to store seven vintage vehicles, and it proposed landscaping along the boundary with No 4 Oxley Place.
(h) As the third application was for an outbuilding larger than that in the second application, it was refused under delegated authority without advertising. The reason for refusal was again its noncompliance with the Policy.
Town planning scheme and policy provisions
15 Under the general objectives of TPS 3, the Council is required to:
"1.12(c) … ensure the orderly and proper use and development of land within the District;"
16 An outbuilding is defined in cl 1.13(4) as:
"'outbuilding' means a building appurtenant to and detached from a residential dwelling but does not include a pergola, patio or carport."
17 An outbuilding is included within the use class of "Single House", which is a permitted (P) use within the "Residential" zone.
(Page 8)
18 Under Div 11 - "Miscellaneous Uses", it explains:
"4.39 Outbuildings
All outbuildings shall be ancillary to the primary use of the land and shall, except with the approval of the Council, comply with the conditions set out hereafter in this clause:
(a) Outbuildings on lots below 5000 [square metres] in area shall not:
(i) have a combined area of greater than 65 square metres; or
(ii) be located within 1.2 metres of a side or rear boundary, nor within 3.0 metres of a habitable room window of an existing dwelling on an adjoining allotment; or
(iii) have a height greater than 3.0 metres at wall height and 4.0 metres at the ridge line."
"8.14(c) set out special requirements relating to one or more aspects of the control of development and land use."
19 The Policy is one such code and was endorsed by Council in September 2004 to provide guidance in the determination of applications for outbuildings.
20 The purpose of the Policy is:
"To provide a guide for the assessment and determination of applications for planning approval for outbuildings (sheds/garage in the Residential, Rural Landscape Living and General Rural zones."
21 The Policy objectives are:
"1.0 Policy Objectives
- a) To provide flexibility for outbuilding size, construction and materials to meet the needs of local residents.
b) To ensure that outbuildings are constructed and located in such a way as to minimise their impact on the amenity of the locality."
22 The procedure where the outbuilding does not apply to all of the criteria is explained in this way:
"5.2 Subject to Clause 5.3 below, outbuildings that do not comply with all of the criteria corresponding to the relevant zone in Table 1 of this Policy will be referred to affected adjoining neighbours for comment, prior to being determined by the Shire.
5.3 Outbuildings that fit any one or more of the criteria corresponding to the relevant zone in Table 2 of this Policy will be referred to Council for determination and will generally not be approved unless in Council's opinion the size, appearance and location of the outbuilding will not have a detrimental impact on the landscape and amenity of the area. In forming this opinion, Council may have regard to the submissions (if any) from affected neighbours."
23 An examination of Table 2 shows, in the "Residential" R5 zone, that where the total area of outbuildings on the lot, or the individual area of a proposed outbuilding exceeds 100 square metres or 10% of the lot area (whichever is less), the proposal will generally not be approved.
24 In the view of the Tribunal, the wording of cl 4.39 (Outbuildings) of TPS 3 is clear in setting specific standards on lots below 5000 square metres, but the matter is complicated by the somewhat unclear and convoluted wording and provisions of the Policy.
25 What the Policy appears to do is to provide broad flexible standards which can be exceeded providing there is no detrimental impact on the landscape and amenity of the area.
26 Clearly, the proposal exceeds the provisions of TPS 3 (65 square metres) in terms of the floor area of the individual outbuilding and the total area of all outbuildings combined (142 square metres).
(Page 10)
- Also, the proposed ridge height of the outbuilding (4.2 metres) exceeds the 4.0 metre requirement of the TPS 3.
27 However, in terms of both TPS 3 and the Policy, the proposal could be approved, providing a sufficiently convincing argument could be mounted. It is clear that such an argument would need to be based on the orderly and proper use of the land, and the effect of that use on the amenity of nearby residences.
Objections to the proposal
28 In the Council resolution of 23 May 2006, the various submissions objecting to the proposal were noted, and the responses to those submissions as prepared by staff were adopted.
29 The principal submission was lodged by Mr and Mrs Peetoom of No 4 Oxley Place. Their property is next door to the subject land and their detailed objections largely encapsulate the broad views of the other objectors.
30 On 17 July 2006, Mr Duncan Peetoom lodged an application on behalf of his parents under the provisions of s 242 of the PD Act to present a submission to the Tribunal. The application was accepted at the hearing on 8 September 2006.
31 The arguments of Mr and Mrs Peetoom broadly state:
(a) The peace of the neighbourhood will be disturbed on a continuing basis due to the rebuilding and maintenance of veteran vehicles.
(b) The scale of the proposed development is incompatible with other development and uses in the zone. At 4.2 metres, the proposed outbuilding is 40 centimetres taller than the home at No 4 Oxley Place.
(c) There are several trees with a diameter greater than 150 millimetres at a height of 1.2 metres above ground that may have to be cut down for the proposed outbuilding.
(d) TPS 3 and a Shire "Planning Approval Information Sheet" both suggest a maximum 65 square metres for a lot smaller than 5000 square metres.
(Page 11)
- (e) Because of the size and location of the proposed outbuilding, and the irregular shape of the subject land, it will be impossible to minimise the visual impact of such a large building on the landscape in a predominantly single storey dwelling locality.
(f) The intended activities in the proposed outbuilding include engine and transmission repair, bodywork and painting and other significant vehicle repairs. The nature, size and scope of these activities will have a detrimental effect on the amenity.
(g) Veteran car engines do not have to comply with current engine exhaust emission standards. Consequently, testing of rebuilt engines will cause considerably more air pollution than that resulting from modern vehicles. Revving of old engines will disturb the tranquillity.
(h) The proposed outbuilding would be impossible to screen by means of topography, vegetation or fencing.
(i) The removal of the two small outbuildings will make no difference to the impact of the proposed building, the rear of which will present as a solid wall of 33 square metres in area.
(j) Even if a 1.8 metre boundary fence was built between the two homes, it would still be dwarfed by the proposed outbuilding.
(k) The proposed outbuilding is made of green Colorbond and protrudes beyond the rear of the existing brown brick dwelling towards the street alignment. This is contrary to the relevant Policy provision.
32 Other objections included the unkempt appearance of the property due to an assortment of spare parts on the property; the possibility of the proposed building having a detrimental impact on market values and the need for such a use to be located on an industrial site.
Applicant's response to objections
33 The applicant's response to the objections is outlined in the "Grounds for Review" dated 4 July 2006. It argues:
(Page 12)
- (a) Although the total area of all outbuildings at 142.4 square metres would exceed the TPS 3 and Policy limits, the individual building at 100 square metres meets all the criteria of the Policy in terms of floor area, wall height, ridge height, minimum setback from the boundary and maximum setback from a habitable window on the adjoining allotment.
(b) The applicant's garage is a separate building and classed as an outbuilding. In this circumstance, it is reasonable to include the garage is part of the primary dwelling, and the proposed outbuilding would not then exceed the maximum limit.
(c) The Policy recommends a maximum total area of all outbuildings using the lesser of either a percentage (10%) of block size or fixed upper limit (100 square metres). As such, a lot of 1000 square metres would receive an approval for 100 square metres of outbuildings as it satisfies both the percentage and upper limit standards. The subject land is twice the size (2226 square metres) and the applicant only seeks an exemption from the upper limit of 100 square metres. At 142.4 square metres, the calculated coverage is only 6.4%, and not out of proportion to the size of the lot.
(d) If the objective of the policy is to allow flexibility, then a literal interpretation as used by the respondent as a basis of refusal is a contradiction of the Policy intention and not sufficient grounds to refuse the proposal.
(e) The Policy states that proposals which exceed the Policy limits would generally not be approved, except in exceptional circumstances. The applicant believes the proposal is an "exceptional circumstance".
(f) The applicant contends that objectives have been based on misinformation. Following discussions, the objection from one adjoining property (No 39 Padbury Road), which is potentially most affected, has been withdrawn.
(g) Some of the objections are from properties that will not be affected by the proposed development.
(Page 13)
- (h) The use of terms such as "motor body works", "wrecker's yard" and "motor repair station" are totally misleading and have resulted in prejudice. The proper interpretation of these terms has been addressed by Council officers.
(i) At no stage have the terms "mechanical workshop" and "bodywork and painting" been used by the applicant, as the outbuilding is for storage and minor maintenance only. The applicant does not possess the skills or qualifications to undertake bodywork and painting.
(j) The proposed location of the outbuilding would minimise visual impact on surrounding properties, and would result in the loss of the least amount of native vegetation. To move the building forward would result in the loss of several large trees.
(k) The principal complainants (Mr and Mrs Peetoom) have a greater level of cover from outbuildings and carports on their land than the applicant's proposal.
(l) The proposed building is for the storage of already restored vehicles and other domestic equipment/vehicles. Any work inside the building would be of a nature expected in a normal residential shed.
(m) The applicant should be able to use her own land, rather than it providing views for surrounding properties.
(n) The proposed outbuilding and native planting scheme will provide a significant improvement to the current appearance of the property.
The matter of amenity
34 A significant issue in this matter is that of amenity, with a belief by those objecting to the proposal that their somewhat idyllic lifestyle in peaceful bush surrounds will be threatened by both visual and noise pollution.
35 These are reasonable concerns, and the primary issue before the Tribunal is whether these concerns can be minimised, or eliminated altogether.
(Page 14)
36 In this particular case, the applicant and nearby residents have chosen not to construct solid dividing fences, but rather to create a sense of openness, with individual homes and ancillary structures positioned in amongst low to medium high eucalypt trees and scrub. In that way, a high level of amenity has already been created.
Orderly and proper planning
37 In Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522, it states:
"In several cases it has been held that where a tribunal attaches too much or too little importance to a 'policy' or other relevant consideration, an error of law is not thereby committed."
38 As explained in [27] above it would be possible, in terms of the flexibility given to the respondent in both TPS 3 and the Policy, to approve the development. In that sense, an approval could be seen as consistent with orderly and proper planning, providing that the overall amenity was preserved.
Conclusions
39 The application for review has been lodged against a decision of the respondent to not approve an outbuilding on the subject land due to its non-compliance with the Outbuildings Policy.
40 The prime intent of the outbuilding, which is 100 square metres in area and 4.2 metres high, is to store seven vintage cars and a caravan and to provide racks for tyres and parts storage along with a lathe, drill post and tuneup machine.
41 As noted in information before the Tribunal, the property currently has a total area of outbuildings of 71.6 square metres consisting of a single car garage of 42.4 square metres, a storage shed of 4.32 square metres and an aviary of 24.88 square metres. Should the application proceed, the two smaller sheds would be removed.
42 The applicant advises that the vehicles, which are currently located off site, are used solely for private purposes, including car club activities and charity events. Also, being fully restored, they would only require basic maintenance.
(Page 15)
43 In answer to a question from the Sessional Member at the hearing on the type of activities to be conducted on site, Mr David Bazen for the applicant advised, in reference to Mr and Mrs Stockdale:
"They have no training, they have no skills and that, and certainly, no intention of doing any bodyworks, or restoration works, or panel beating works, for that matter. Anything like that that would be required to be done on these vehicles will be referred to a professional … "
44 In its consideration of the matter it is clear from TPS 3 that, for outbuildings on lots of less than 5000 square metres, they should not have a combined area of greater than 65 square metres or be higher than 4.0 metres at the ridge line. However, cl 4.39 of TPS 3 does allow the respondent to vary these requirements.
45 In proposals for the size contemplated, adjoining neighbours are notified. In this instance, there was strong opposition (although one objection was withdrawn), essentially on the grounds of visual and noise pollution. Photographic evidence was produced showing the unkempt nature of part of the subject land with old tyres, engine blocks, gearbox housings and axles on show.
46 However, the applicant argues that the new outbuilding would allow these items to be properly stored, and has mounted a solid defence on the limitations of the Policy provisions, the misleading comments regarding the proposed activities on site, and that the location of the building would have little impact on existing native vegetation. A replanting programme is also proposed and the applicant has produced letters of support from former neighbours who lived next to Mr and Mrs Stockdale in High Wycombe.
47 In the view of the Tribunal, the broad intent of both TPS 3 and the Policy is to place limits on the size of one or more outbuildings and that, in accordance with the Policy, an outbuilding/s will generally not be approved if it exceeds 100 square metres. In that respect, the definition of an outbuilding includes both sheds and garages, and the Tribunal cannot accept the applicant's argument that the existing garage at 42.4 square metres should be excluded from the overall calculations.
48 What can be said though is that the flexibility is there in both TPS 3 and the Policy to go beyond the 100 square metre limit, providing the outbuilding is constructed and located in such a way as to minimise its impact on amenity.
(Page 16)
49 In the view of the Tribunal, the principal difficulty in the circumstances of this case is the elongated triangular shape of the subject land which narrows at the rear towards its apex. It is towards that location that the new outbuilding would be positioned, and this places it in close or near proximity to existing residences. In fact, it is the shape of the subject land which means that it has a common boundary with five other lots.
50 What must be said is that, if all lots were rectangular in shape and faced the street with the residence at the front and bushland at the rear together with dividing fences, the circumstances of the case could be different. Those circumstances do not exist in this instance.
51 In this particular case, there is an absence of dividing fences which, of itself, has provided openness to the landscape and high degree of amenity in a natural environment. The construction of a large 100 square metre outbuilding at a height of 4.2 metres relative to and in close proximity to existing nearby residences, despite extensive replanting, would still be visually intrusive, incongruous in the environmental setting, and at odds with the preservation of the existing amenity.
52 The Tribunal also remains unconvinced that the maintenance activities contemplated would, on an ongoing basis, preserve the amenity of nearby residents.
53 In the view of the Tribunal, the weight of argument falls with the respondent in this matter, and the application is not upheld.
Orders
54 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
(Page 17)
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