THURECHT and CITY OF ALBANY
[2007] WASAT 27
•5 FEBRUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: THURECHT and CITY OF ALBANY [2007] WASAT 27
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 5 FEBRUARY 2007
FILE NO/S: DR 281 of 2006
BETWEEN: ROGER THURECHT
Applicant
AND
CITY OF ALBANY
Respondent
Catchwords:
Outbuilding - Amenity of the locality - Precedent - Combined floor area
Legislation:
City of Albany Town Planning Scheme No 3, cl 5.1.1, cl 5.1.2, cl 5.3.1, cl 5.4, cl 6.9, cl 6.9.4(A)
Planning and Development Act 2005, s 252(1)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr John Devereux (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: City of Albany
Case(s) referred to in decision(s):
Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged by Mr Roger Thurecht against a decision of the City of Albany to refuse planning consent for an additional "outbuilding" at 15 Kurannup Road, Bayonet Head, essentially on the grounds that the proposal did not comply with policy and would have a detrimental impact on the amenity of the locality.
In undertaking this review, the Tribunal examined the respective arguments of the parties, together with the background to the matter, along with the provisions of the City of Albany Town Planning Scheme No 3 and the provisions of the City of Albany Outbuildings Policy. The issue of amenity was also examined, as well as an assessment on the likely effect on the existing and proposed sheds if subdivision of the subject land was to proceed.
In the view of the Tribunal, the proposal achieves a balance between providing for the legitimate needs of the applicant and ensuring that the location of the proposed shed will minimise any adverse impact on neighbouring properties and the streetscape. In that sense, the proposal would not have a detrimental impact on residential amenity.
The application for review is upheld.
Introduction
The application for review, dated 16 August 2006, was lodged by Mr Roger Thurecht (applicant) against a decision of the City of Albany (respondent) on 31 July 2006 to refuse planning consent for the construction of an "outbuilding" at 15 Kurannup Road, Bayonet Head.
The application was made under the provisions of s 252(1) of the Planning and Development Act 2005 (PD Act).
The Refusal of Planning Consent was issued under the relevant provisions of the City of Albany Town Planning Scheme No 3 (District Scheme) (TPS 3) for the following reasons:
"1.It does not comply with the City of Albany's Outbuildings Policy
2.It would have a detrimental impact upon the amenity of the locality."
Subject land and legislative framework
The subject land can be described as Lot 3, Location 3470 on Certificate of Title 1935 Folio 45. It has an area of 3704 square metres, is located at the head of a cul‑de‑sac and is separated from the adjoining Lot 2 by a pedestrian accessway.
The property is zoned "Residential" under TPS 3 and has a density coding of R20.
Of relevance is the City of Albany Outbuildings Policy (Policy).
Respondent's position
The respondent's position is outlined by Mr John Devereux, Senior Planning Officer, in a Statement of Issues, Facts and Contentions dated 15 September 2006. He argues:
(a)The applicant proposes to construct an "outbuilding" of 54 square metres which, together with the existing 84 square metre "outbuilding", will bring the total floor area to 138 square metres. This exceeds the maximum 100 square metre floor area for outbuilding(s) under the Policy.
(b)The 100 square metre maximum floor area is more than adequate storage for domestic use in a residential zone.
(c)Since the adoption of the Policy in September 2005, the Council has been consistent with its determinations on outbuildings. Any variation from the Policy will weaken its effectiveness.
(d)The subject site is surrounded by smaller residential zoned properties (473 square metres to 2691 square metres). An approval in this case has the potential to be used as a precedent to support larger outbuildings on surrounding properties.
(e)Council would support the proposal on a "Special Rural" zone site, which generally range from one hectare to four hectares.
(f)Due to the size of the subject land there is the ability to subdivide, and given the central position of the house there is the potential of the two outbuildings remaining on a much smaller lot.
Applicant's position
The position of the applicant is outlined in Appendix A (Grounds for Appeal) attached to the application for review. It argues:
(a)The respondent has been too rigid in its policy application and appears not to have considered the case on its merits.
(b)A copy of the site plan and reasons for the additional shed were given to three neighbours. They have signed letters stating that they have no objections.
(c)One of the reasons for purchasing the property was that it was larger than standard, and had the room to build another storage shed.
(d)A letter was sent to each Councillor inviting them to visit the site to determine whether there would be a detrimental impact upon the residential amenity of the locality. No Councillor accepted the offer, and yet the refusal states that the proposal would have a detrimental impact.
(e)Attached to the house of the adjoining neighbour at No 14 Kurannup Road is a shed with a colorbond side wall which is 12 metres x 12 metres (144 square metres) and over 5.0 metres high. There is a separate shed 6 metres x 6 metres (36 square metres). The two sheds have a total floor area of 180 square metres.
(f)The example at No 14 Kurannup Road shows how the Policy can create double standards. Also, any number of garden sheds could be built with a far greater negative impact and less attractive appearance than the proposed 6 metre x 9 metre shed.
(g)The existing property has extensive gardens and screening to maintain privacy and visual amenity. The proposed shed could be screened by trees or a trellis to add to others on the property.
(h)The proposed shed is to be a dark green colorbond to blend with existing vegetation.
(i)It is assumed that the Policy was devised for lot sizes with an average somewhere between 500 square metres and 1500 square metres for "Residential" zoned property. However, policies are only guidelines and common sense should prevail to vary the guidelines for larger lots without the worry of setting a precedent.
(j)The additional 38 square metres over and above the allowable 100 square metres is minute in comparison to the size of the subject site. Also, there will be minimal impact on the locality.
Planning issues
The principal planning issue is whether, in the particular circumstances of this case, the merits of the proposal justify an approval contrary to the provisions of the Policy.
Assessment of proposal
Background
The background to the proposal is largely contained in an undated letter from the applicant to the respondent received on 13 June 2006. The letter explains:
(a)The existing colorbond shed is 12 metres x 7 metres and stores a 6.0 metre powerboat and a 4.2 metre catamaran. There is a small workshop at the rear.
(b)The proposed $7000 colorbond shed is intended to store a camper trailer, a boat and trailer and a tandem box trailer. The shed will be 2.4 metres in height with three rollerdoors, and is only designed for three-bay storage. There will be no power connection.
(c)The position of the proposed shed is the most level on the site and would require minimal earthworks. It would have direct access to the existing driveway.
Town Planning Scheme provisions
The relevant provisions of TPS 3 include:
"5.1.1Requirement for Approval to Commence Development
Subject to clause 5.1.2 all development on land zoned and reserved under the Scheme requires the prior approval of the Council.
…
5.3.1Approval/Refusal
The Council may grant planning consent with or without conditions or may refuse to grant its consent. The decision shall be conveyed to the applicant.
…
5.4Matters To Be Considered By Council
The Council in considering an application for planning consent is to have due regard to such of the following matters as are in the opinion of Council relevant to the use or development of the subject of the application:-
…
(f)any Town Planning Scheme Policy adopted by the Council under clause 6.9 and any other plan or guideline adopted by the Council under the Scheme
…
(n)the preservation of the amenity of the locality.
…
6.9.4(A)A Town Planning Scheme Policy shall not bind the Council in respect of an application for Planning Consent … "
The Outbuildings Policy
The "Aim" of the Policy is:
"To achieve a balance between providing for the various legitimate needs of residents for outbuildings, and minimising any adverse impacts outbuildings may have on neighbours, a street, a neighbourhood or locality, and the City as a whole."
Under the "Background" to the Policy, the following is explained:
"The City of Albany knows that families have varying needs for outbuilding space (areas and heights) for garaging of vehicles, storage of boats, caravans and other items, domestic workshops, games rooms, studios, stables, etc. As a general rule people expect to be able to have larger outbuildings on larger lots.
The City is also aware that in some instances outbuildings may result in problems including:-
•Use of outbuildings for illegal commercial or industrial purposes, which may result in adverse noise, traffic, and visual impacts for neighbours and the locality. With the exception of those used for commercial farming purposes on rural lots, or approved home businesses, outbuildings may only be used for domestic purposes.
•Unlike most dwellings, outbuildings are usually very bland metal structures devoid of architectural features such as windows, verandas, etc. Construction of large and/or high sheds may have adverse impacts on visual character of streets and neighbourhoods, neighbours and scenic rural or coastal landscapes.
•When outbuildings incorporate reflective materials, such as zincalume, and are sited in visually prominent locations, there is a greater potential for adverse impacts on the landscape, and in some instances, reflection can cause serious nuisance for surrounding/nearby residents."
Under Table 1 of the Policy, the outbuilding requirements in a residential zone include a maximum wall height of 3.0 metres, a maximum ridge height of 4.2 metres and a maximum combined floor area of all outbuildings totalling 100 square metres.
In the view of the Tribunal, it is clear that what the respondent is attempting to achieve with the Policy is a balance between the legitimate needs of an applicant and the need to protect the amenity of the surrounding area in terms of noise, traffic and visual impact.
The matter of amenity
In Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) at page 5, "amenity" is described as:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and land uses."
An examination of the Development Services Report to Council on 18 July 2006 reveals little discussion on the issue of amenity, apart from the following:
"The subject property is surrounded by smaller residential zoned properties and has the potential to be used as a precedent to support larger outbuildings on surrounding properties."
In a response, dated 22 September 2006, to the respondent's Statement of Issues, Facts and Contentions, the applicant argues:
(a)If the respondent could make an allowance by supporting larger outbuildings on larger lots, there would be no precedent effect.
(b)If the boats, trailers, camper trailer and general possessions were stored, it would be better than having them on display.
(c)If the possessions were stored, it would help the security of the whole neighbourhood by not inviting unwanted elements into the area.
From the information before the Tribunal, it appears that the respondent did not seek the views of neighbours on the proposal in order to gauge their views and expectations.
On the other hand, the applicant did obtain the support of the immediately adjoining neighbours at Nos 14, 18 and 19 Kurannup Road, Bayonet Head.
The matter of subdivision
As outlined in [11(f)] above, the respondent contemplates the prospect of a future subdivision approval giving rise to the two outbuildings remaining on a much smaller lot.
The applicant argues in his response of 22 September 2006:
(a)If subdivision was approved, the Council would have the power to require that one or both sheds be removed.
(b)If subdivision was approved, it would be possible to build a shed similar to the one applied for on each of the new lots.
(c)In reality, if the subject land was subdivided, then the house and all sheds would be removed.
In the view of the Tribunal, it would be open to the Western Australian Planning Commission to require the demolition of one or both sheds on subdivision, depending on the proposed configuration of the intended lots.
Conclusions
The application for review has been lodged against a decision of the respondent to not allow the construction of an additional "outbuilding" on the subject land. The reasons were that an approval would not comply with policy and would have a detrimental impact on the residential amenity of the locality.
It appears that the respondent has been consistent over time in its application of the Policy provisions which limit the maximum combined floor area of all outbuildings to 100 square metres in a residential zone. The proposal seeks a combined floor area of 138 square metres.
The applicant argues that the respondent is too rigid in the application of the Policy in this case, and is inconsistent in that the combined floor area of outbuildings located in the neighbouring property to the north is in the order of 180 square metres. Also, that the particular circumstances of the case, with the large lot size and extensive gardens and screening, justify an approval.
In undertaking this review, the Tribunal has examined the background to the matter, the relevant provisions of TPS 3 and the Policy, together with the issues of amenity and the likely effect on the existing and proposed shed if subdivision of the subject land was to proceed in the future.
From an examination of the 1:250 site plan and photographic evidence provided by the applicant, the following is clear:
(a)The subject land at 3704 square metres is the largest lot in the street and located at the end of the cul-de-sac. There would be no "through" traffic.
(b)The subject land is separated from the adjoining property to the north by a pedestrian accessway. As the proposed shed is located adjacent to the northern boundary of the site, there would be no overshadowing effect on this adjoining property.
(c)The existing 12 metre x 7 metre colorbond shed is located towards the north-east corner of the subject land and there is a high screen on its western side. The shed is located some 48 metres from the front of the property.
(d)The proposed shed measuring 6 metres x 9 metres would be 2.7 metres from the northern boundary of the site and some 23 metres from the front of the site. It would be some 16 metres to the west of the existing shed.
(e)The entrance to the subject land is well screened with vegetation, and the proposed shed would be behind an existing hedge and trees. Very little of any of the proposed shed could be seen from the roadway, particularly if further planting was to occur.
In accordance with O 4 of the Tribunal of 6 September 2006, the respondent has filed a set of "without prejudice" draft conditions to be imposed if the proposal was to proceed. The draft conditions outlined in the respondent's advice of 6 October 2006 are:
"1.The outbuilding being used for domestic storage only and not for commercial or industrial use or human habitation.
2.The outbuilding to be constructed out of non-reflective materials."
The "without prejudice" draft conditions were accepted by the applicant in his advice to the Tribunal of 11 October 2006.
In the view of the Tribunal, this matter turns principally on the provisions of the Policy and residential amenity. In relation to the first, the respondent notes in an advice to the Tribunal on 6 October 2006:
" …
2.Council is not bound by the policy in determining applications; however, the reason for creating the policy was to provide guidance on how Council would determine applications. In considering this application, Council has used its discretion to refuse the application."
Similarly, the Tribunal is not bound by the Policy, and the proposal must be considered on its merits. In this case, the proposed shed is located on a large residential site and would not be used for industrial or commercial purposes. It would not be built with reflective material and would not be in a visually prominent location.
In summary, the proposal meets the principal aim of the Policy in that it achieves a balance between providing for the legitimate needs of the applicant and ensuring that the location of the proposed shed will minimise any adverse impact on the neighbours in particular, and the street in general. In that sense, the proposal would not have a detrimental impact on the residential amenity of the locality.
In the view of the Tribunal, the weight of argument falls with the applicant and, subject to meeting the two conditions outlined in [32] by the respondent on 6 October 2006, the proposal should now proceed on its merits.
Orders
For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is upheld.
2.The decision under review is set aside.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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