Sweeney v Shire of Busselton
[2006] WASAT 277
•12 SEPTEMBER 2006
SWEENEY & ANOR and SHIRE OF BUSSELTON [2006] WASAT 277
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 277 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:622/2005 | 25 MAY 2006 | |
| Coram: | MR P McNAB (MEMBER) | 12/09/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | RACHAEL SWEENEY REDMOND SWEENEY SHIRE OF BUSSELTON |
Catchwords: | Town planning Subdivision in a former rural area Transitional zoning Low density housing on boundary of subdivided estate Higher density towards township Application for a second dwelling on a large lot on boundary Variation to Residential Design Codes sought Whether certain guide plans formed part of planning framework Whether planning framework manifested transition and limitations on grouped dwellings Whether "de facto rezoning" – Tribunal found planning framework sufficiently clear Tribunal gave significant weight to guide plans Intent of planning framework was to limit grouped dwellings Tribunal indicated streetscape and amenity would be adversely affected by proposal Application dismissed. |
Legislation: | Shire of Busselton District Town Planning Scheme No. 20, cl 6(3), cl 6(5), cl 13, cl 13(1)(a)(v), cl 21(2)(c)(ii), cl 27, cl 30, cl 58, Sch 6, Residential Design Codes 2002 |
Case References: | Caley v Coffs Harbour City Council [1992] NSWLEC 12 Guttinger and City of Joondalup [2005] WASAT 316 Marzorini and Ors v Mitchell SC [1999] VCAT 1826 Mulcahy v Shire of Maffra (1983) 1 PABR 325 Smart and Byrne v Barossa Council [1999] SAERDC 29 Spectator Investments Pty Ltd and City Of Joondalup [2006] WASAT 232 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 Tooth v City of Subiaco (2005) 41 SR (WA) 198 Trickey and City of Subiaco [2005] WASAT 256 Widdison v Moorabool SC and Anor [2002] VCAT 1535 Nil |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : SWEENEY & ANOR and SHIRE OF BUSSELTON [2006] WASAT 277 MEMBER : MR P McNAB (MEMBER) HEARD : 25 MAY 2006 DELIVERED : 12 SEPTEMBER 2006 FILE NO/S : DR 622 of 2005 BETWEEN : RACHAEL SWEENEY
- REDMOND SWEENEY
Applicants
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Town planning - Subdivision in a former rural area - Transitional zoning - Low density housing on boundary of subdivided estate - Higher density towards township - Application for a second dwelling on a large lot on boundary - Variation to Residential Design Codes sought - Whether certain guide plans formed part of planning framework - Whether planning framework manifested transition and limitations on grouped dwellings - Whether "de facto rezoning" – Tribunal found planning framework sufficiently clear - Tribunal gave significant weight to guide plans - Intent of planning framework was to limit grouped
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dwellings - Tribunal indicated streetscape and amenity would be adversely affected by proposal - Application dismissed.
Legislation:
Shire of Busselton District Town Planning Scheme No. 20, cl 6(3), cl 6(5), cl 13, cl 13(1)(a)(v), cl 21(2)(c)(ii), cl 27, cl 30, cl 58, Sch 6,
Residential Design Codes 2002
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants : Mr P Wittkuhn
Respondent : Mr F van der Kooy
Solicitors:
Applicants : McLeods
Respondent : Minter Ellison
Case(s) referred to in decision(s):
Caley v Coffs Harbour City Council [1992] NSWLEC 12
Guttinger and City of Joondalup [2005] WASAT 316
Marzorini and Ors v Mitchell SC [1999] VCAT 1826
Mulcahy v Shire of Maffra (1983) 1 PABR 325
Smart and Byrne v Barossa Council [1999] SAERDC 29
Spectator Investments Pty Ltd and City Of Joondalup [2006] WASAT 232
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Tooth v City of Subiaco (2005) 41 SR (WA) 198
Trickey and City of Subiaco [2005] WASAT 256
Widdison v Moorabool SC and Anor [2002] VCAT 1535
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Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 This matter came before the Tribunal as a review of a decision by the Shire of Busselton, not to permit the construction of a second house (that is, a grouped dwelling), in the front area of a large block of land found on the western boundary of a subdivision (namely the "Naturaliste Heights Estate"), located some one kilometre west of the town of Dunsborough.
2 The land, the subject of the review was zoned residential, with a low density coding. The proposed development did not meet the lot size standards set by the Residential Design Codes 2002, and a variation was sought under the Shire of Busselton Town Planning Scheme No. 20.
3 The Shire argued, that to allow the second house to be built would undermine a long-standing planning strategy that provided a series of density codings (as to lot sizes and related matters, including whether grouped dwellings could be built on the land) which had a transitional purpose. That is, the larger lot sizes, as here, with a low density coding were intended as a buffer of sorts between more rural land generally to the west and higher density housing to the east. The Shire also claimed, that the planning strategy had taken into account other matters, such as landscape and vegetation cover. The Shire also submitted, that the streetscape and scenic value of the locality would be adversely affected if the proposal went ahead.
4 Essentially, the applicants argued that the transition claimed by the Shire, upon closer analysis, did not exist with any real justification, and that the subject land could be considered on a stand alone basis as justifying the second house. The applicants also submitted that, taken as a whole, the streetscape would not be materially affected by the proposal.
5 The Tribunal considered the planning strategy, its history and its aims and found that its intent was as the Shire had submitted. The Tribunal also considered, that an ad hoc approval such as was being sought by the applicants would undermine the planning strategy, and amount to a de facto rezoning of the land.
6 The Tribunal therefore refused the application for review.
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The Subject Land
7 The subject land of this review is Lot 370, Schooner Crescent, Dunsborough in the Shire of Busselton. This land is located in the "Naturaliste Heights Estate" (or subdivision), a precinct recognised by or referred to in some of the respondent's planning instruments (see below). This particular subdivision was approved in 2001.
8 Lot 370, is a rectangular block of approximately 1500 square metres, located approximately one kilometre west of the Dunsborough town centre. The subject land faces Schooner Crescent to the north-east. It has a moderately elevated profile. It backs on to land which is zoned R2.5. It has built upon it a single dwelling house, at the rear; a second dwelling at the front is proposed, and that is the subject matter of this review.
9 Mr Brash, a witness called by the Shire, described the subject land as "a residential lot situated within a low density residential neighbourhood on the westernmost boundary of Dunsborough's urban development". The Tribunal does not understand that the applicants would disagree with this broad description.
10 Of the relevant features of land in the vicinity of the subject land, for present purposes it is only important to note two matters: first, that in respect of certain land to the west of Schooner Crescent, but not including the subject land, there is a 10 metre "vegetation preservation corridor" at the rear of such properties (formalised by way of a restrictive covenant). Secondly, it should be noted that the subject land falls within a landscape value area recognised under the Shire of Busselton's Town Planning Scheme No 20 (TPS 20).
The Applicants' Proposal
11 As mentioned, the applicants propose to build a second dwelling house at the front of the property. A separate subdivision of the subject land is proposed (not the subject of these proceedings). By consent, an amended proposal in relation to that second dwelling is before the Tribunal.
12 The matter is principally governed by the TPS 20, and other planning instruments referred to with more particularity below.
13 The respondent has rejected the application, essentially for the following reasons:
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- 1. The proposed development would be inconsistent with a transition planned from low density residential areas in the locality, to nearby rural land (towards the west), such a transition also having regard to topography, remnant vegetation, landscape and other matters. Further, an appropriate mix of duplexes, and grouped dwellings was selected, and were appropriately R-Coded.
2. The relevant planning instruments (a Guide Development Plan and a Subdivision Guide Plan) reflect this situation, and thus also reflect reasonable amenity and locality expectations.
The Planning Framework
14 It is common ground or not disputed that this review is governed by the following clauses of TPS 20:
• cl 21(2)(c)(ii), where a grouped dwelling is an "AA" use under the Zoning Table, requiring development approval
• cl 6(3), in effect, incorporating, by reference, the Residential Design Codes 2002 (R Codes)
• cl 6(5), providing for "variations and exclusions" to the R Codes by reference to cl 58
• cl 27 dealing with landscape value areas
15 It is common ground between the parties, that this proposal would be a "grouped dwelling" within the meaning of the R Codes. Further, it is common ground that the subject land is zoned R10 (that is, a low density coding). Thus, Table 1 of the R Codes fixes an average of 1000 square metres, and a minimum of 875 square metres as general site requirements per dwelling.
16 As the average area of the proposed development would be 753 square metres per (grouped) dwelling, these general site requirements cannot be met, unless they can be varied in some way. Clause 58 of TPS 20 appears to permit just that.
17 Clause 58, so far as is relevant, provides as follows:
"Notwithstanding any other provision of the Scheme -
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- (a) the Council may consent to the development for the purposes of the erection of more than two grouped dwellings on any lot comprising not less than 900 [square metres], with a minimum site area of 450 [square metres] per grouped dwelling within any area coded R10 or greater on the Scheme Map, excluding standard residential lots with direct canal frontage in the Port Geographe Development Area;
…
- (d) in determining any application lodged pursuant to Sub-cl (a), (b) and (c) above, the Council shall consider, in addition to those matters listed in cl 13, cl 30 and Sch 6, the likely impacts of the proposed development on the identifiable or special character and amenity of the immediate locality in which the proposed development is to be situated."
18 Clause 13 of TPS 20, amongst other things, deals with the usual amenity and other general discretionary factors (including, importantly, reference to certain plans and policies - see below) that local governments typically have to have regard to when making town planning decisions.
19 Clause 30 and Schedule 6 of TPS 20, provide for "Special Character Areas" if "designated on the Scheme Map". As the subject land is not so designated as a "Special Character Area", we are left with a discretion to approve the development, which is to be exercised in accordance with the usual or typical discretionary criteria just referred to, and also having regard to "the likely impacts" on the "character and amenity of the immediate locality".
20 Clause 13(1)(a)(v) of TPS 20 provides for regard to be had to:
"Any Subdivision Guide Plan, Development Guide Plan, Structure Plan or other plan or Policy endorsed by Council applying to or that is considered to relate to the land to which the development application relates."
21 The relevant plans and policies identified for the purposes of this review were:
• the Dunsborough Structure Plan, 1990 (see area 3A – West Dunsborough);
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- • a "Guide Development Plan" (GDP), formally endorsed by the respondent in March 1994;
• a "Subdivision Guide Plan" (SGP) dated 3 December 1997, (and date stamped "Ministry of Planning, Bunbury Office, 11 December 1997", with a file reference number).
22 The last two documents listed above are key documents. The applicants are at odds over the status of the SGP, and put the respondent to proof that this document was formally adopted by the respondent. The respondent could not point to any resolution or other document formally adopting the SGP. Assuming that there is no presumption of regularity applicable to this instrument (a question which it is unnecessary to decide), it is nevertheless clear beyond any doubt that this document, originally supplied by the developer, has been treated as a public document; has been considered by the respondent as material to the decision-making process; and is broadly consistent with the other relevant documents identified for the purposes of this review. And, in any event, even if it were to be totally disregarded for the purposes of this review the outcome of the review would be exactly the same.
23 In addition, cl 2.3.2 of the Dual Occupancy Development Policy 1994 requires that a minimum area for two dwellings in R10 areas "is 900 square metres". The policy purports to override the R Codes where they are inconsistent: cl 1.1.3. If necessary, we will return to this matter below.
The respondent's case
24 Mr Brash, a senior planner in the employ of the respondent, was called by the respondent, and gave detailed and comprehensive evidence which may be summarised as follows:
• The Dunsborough Structure Plan and later scheme amendments (1994) made reference "to the opportunities for retaining lower densities to the west of the [Naturaliste Heights subdivision area and] of vegetation retention". (Those scheme amendments led to a subdivision approval in 1998.)
• The associated scheme amendment report, consistently it was said with the intent behind the GDP, provided that
- the proposed subdivision would provide for the following (see the amendment report, at 6-7):
- (i) a residential subdivision providing approximately 140 single residential lots and an appropriate mix of both duplex and grouped housing sites;
(ii) larger residential lots (of 1500-2000 square metres) to the north of the creek line and adjacent to the western boundary of Pt Location 277 (that is, the original subdivision area); and
(iii) larger lots that:
(a) would "assist in vegetation protection whilst also providing an additional buffer to the southern creek line, and to the proposed development on adjacent land to the west"; and
(b) would be "coded to permit only one residence on each lot".
- • The subject land is one of the larger residential lots on the western boundary of the subdivision, coded to permit only one residence and was thus set aside to provide an additional buffer.
• Approval of the proposed development would be, in Mr Brash's view, contrary to the intent of the GDP by increasing the density of development on the western boundary of the subdivision, as well as undermining the "appropriate" (that is, chosen by design) mix of single, duplex and grouped housing sites, as indicated or detailed in the GDP.
• The subject land is zoned R10 and forms part of a belt of larger lots designed to provide a transition from R30 to R20 to R10 and R2 5 as one moves generally west.
• Approval of the proposed development would undermine the orderly transition from higher density codes in the centre of the subdivision to progressively lower codes towards the boundary of the subdivision.
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25 Mr Hall, a town planner, called by the applicants, gave evidence which may be summarised as follows.
26 First, as regards the relevant instruments, Mr Hall doubted that the SGP was ever properly endorsed by the respondent. This matter has been dealt with by the Tribunal above. Next, he says that the GDP, as a precursor to the subdivision, only designated particular portions with no actual lot layout. However, he was willing to assume that the subject land was designated R10.
27 Mr Hall, drew attention to the fact that most of the lots surrounding the subject land were R20, and while there was "an island of R10" there was no true transitional belt. He particularly emphasised that a very large area of land, Pt 295 to the north-west of the subject land (which is apparently unsubdivided at present, and the other side of the vegetation preservation corridor) is zoned R20.
28 Relatedly, Mr Hall drew attention to, in effect, the "higgledy-piggledy" nature (the Tribunal's words) of the surrounding codings in relation to the alleged uniqueness of the subject land (as he saw it), a fact, he suggested, that was inconsistent with the notion of a planned transitional belt of the measured order suggested by Mr Brash.
29 Further, according to Mr Hall, for various reasons including the absence of the vegetation corridor directly affecting the subject land, and based upon his observations, the subject land did "not form part of the same basic streetscape pattern as the lots either to its north or to its south". He also noted the "discordance" created by the various nearby larger R20 lots, created for duplexes, and the observed differences, which were relatively minor, as between the actual R10, and the R20 residences in established areas in the locality.
30 Both experts conferred with a view to producing a joint experts report. However, that short document, useful as it was, mostly consisted of the reiteration of respective points of view.
31 With respect, the Tribunal prefers the expert evidence of Mr Brash over that of Mr Hall's. This is principally because Mr Brash's evidence larges coheres with the plans, his photographs, the zonings (on TPS 20's district scheme map), and the intent of the various instruments on their face (and associated documents), instruments which the Tribunal accepts are picked up by TPS 20 (cl 13) and are a central part of both the history of the matter, and the planning framework. The various instruments, and supporting material collected by Mr Brash, once analysed, show a high
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- degree of internal consistency, and are premised upon such matters as vegetation retention and other amenity factors.
32 It is clear that a general pattern, albeit to some extent impressionistic, but obviously by design, emerges of a "rural" area to the northwest (Pt 295), with larger properties abutting this area (with a vegetation preservation corridor) and to the south (including the subject land); then moving to the north east smaller properties emerge (except for identified duplex sites), all coded R20 in a clear tract. The only apparent "anomaly", if it be that, is the unsubdivided Pt 295 to the north-west which is designated R20. However, more importantly, the lot sizes and R-Coding and historical materials show that large single dwelling lots were contemplated, if not planned, for the western boundary of the subdivision.
Discussion of Relevant Planning Principles
33 What weight should be given to the GDP and SGP? In the Tribunal's view they should be given significant weight. To adapt the words of McClellan CJ in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 at 273: "Evaluation of the evidence in the present case leads to the conclusion that the controls expressed in the [GDP and associated instruments] must be given significant weight". (Emphasis added.)
34 With respect to Mr Hall, nothing in his interesting and thoughtful evidence and observations are sufficiently compelling from a planning point of view to displace the conclusion that the Tribunal has reached above.
35 Further, in the Tribunal's view, the applicants' case, with all respect to Mr Wittkuhn, and his witness Mr Hall, represents an attempt, under the guise of a merits-based exercise of discretion, to engage in what is deprecatingly known as "de facto rezoning". This is a well-established planning concern: see, for example, Marzorini and Ors v Mitchell SC [1999] VCAT 1826 at [45]ff citing with approval, inter alia, Mulcahy v Shire of Maffra (1983) 1 PABR 325: "If the planning authorities desire that the area be established as a 'Rural Residential Zone', then this should be done through normal town planning processes, and not by ad hoc decisions by Responsible Authorities or this [Appeals] Board." (emphasis added). See also, Caley v Coffs Harbour City Council [1992] NSWLEC 12 (Bignold J).
36 In Widdison v Moorabool SC and Anor [2002] VCAT 1535 the Victorian Tribunal said, at [64]:
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- "The current proposals represent a request for a de-facto rezoning of the land. Until such time as the land is rezoned, or the Planing Scheme introduces policies which support the development of dwellings on lots such as these, it is inappropriate to endorse the proposals. The applications should be refused solely on the basis of the current zoning of the land and Council's strategic vision for rural areas."
37 The reasoning there enunciated by the Tribunal is equally applicable here. For the reasons set out above, the Tribunal is satisfied that the relevant instruments show an expected planning outcome which is inimical to what the applicants seek. That object should not be undermined by the giving of development approval in this case.
38 The respondent submitted that its approval of a duplex for an R10 block (Lot 387), south-east of the subject land on Schooner Drive was contrary to the GDP. However, the respondent submitted that it was a proper regulatory approach to now "hold the line", whatever mistakes had been made in the past. Mr van der Kooy cited Tooth v City of Subiaco (2005) 41 SR (WA) 198; Trickey and City of Subiaco [2005] WASAT 256; and Guttinger and City of Joondalup [2005] WASAT 316, cases which support that general proposition.
39 In any event, the answer is given by the Court in Smart and Byrne v Barossa Council [1999] SAERDC 29 at [9], (cited with approval in Spectator Investments Pty Ltd and City Of Joondalup [2006] WASAT 232, at [40]):
"Trite as it may be to say so, 'two wrongs do not make a right', or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions."
Other Matters Raised in the Review
40 Like Widdison and Mooraboolat [65], "[t]hat finding [in relation to de facto rezoning] essentially determines the applications for review. However, as extensive submissions were made about [other matters the Tribunal intends] to make some comments on those matters". Here, the Tribunal will make some brief comments about some other matters that were raised by the parties.
(Page 13)
41 Unsurprisingly, the lot layout already referred to means that, generally speaking, the larger lots to the west of Schooner Crescent (R10) present with more vegetation (or potential for vegetation) than the smaller, more modest lots on the eastern (R20) side of Schooner Crescent. Thus, the respondent submitted that if grouped dwellings were permitted, say, on the western side of Schooner Crescent then more vegetation might go. Further, the respondent submitted that if grouped dwellings were permitted, the intensification of land use, and the resulting bulk, and scale of the western R10 houses, would adversely affect the streetscape, and amenity (including the "scenic quality") of the locality, particularly that of the other owners of single dwellings on the western side of Schooner Crescent. The applicants reject these matters, pointing principally to the allegedly poor current state of vegetation in the area (remnant or otherwise), and the indistinguishable "standard modern suburban-type development" generally prevalent in the locality.
42 However, the Tribunal is of the view that these observations of Mr Hall are not a satisfactory rejoinder to either the intent evident from the planning framework (or its premises) which are disclosed above. Recalling, amongst other things, that the subject land is located within a landscape value area, the considerations identified by the respondent are significant, if not compelling, and they would be additional grounds, were it necessary, to refuse the development application.
Conclusions and Orders
43 For the reasons given above, the application for review should be dismissed. The Orders of the Tribunal are:
- 1. The application for review is dismissed.
2. The decision under review is affirmed.
(Page 14)
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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