Townsend and Anor and Shire Of Dardanup
[2007] WASAT 221
•30 AUGUST 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TOWNSEND & ANOR and SHIRE OF DARDANUP [2007] WASAT 221
MEMBER: MR J JORDAN (MEMBER)
HEARD: 4 JULY 2007
DELIVERED : 30 AUGUST 2007
FILE NO/S: DR 142 of 2007
BETWEEN: BARBARA TOWNSEND
FRANK TOWNSEND
ApplicantsAND
SHIRE OF DARDANUP
Respondent
Catchwords:
Town planning Development Refusal Two single storey grouped dwellings Residential zoning with R12.5 density coding Lot area 1016 square metres Discretion to develop to R20 density Assessment of proposal against criteria for exercising discretion.
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.8.1, cl 3.8.1 A1
Shire of Dardanup Town Planning Scheme No 3, cl 3.2.3, cl 3.4.1
State Administrative Tribunal Act 2004 (WA), s 27, s 30
Result:
The application for approval to develop two grouped dwellings is allowed. The development is approved, subject to conditions
Category: B
Representation:
Counsel:
Applicants: Mr J Weston (Acting as Agent)
Respondent: Mrs E Edwards (Acting as Agent)
Solicitors:
Applicants: JA Weston & Associates (Design & Drafting)
Respondent: Shire of Dardanup
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Lot 13 Ennis Street, Eaton, has a density coding of R12.5 and would normally be too small for the development of two grouped dwellings. Under cl 3.4.1 of the Shire of Dardanup's Town Planning Scheme, however, special approval can be granted for two grouped dwellings at R20 density if certain criteria can be satisfactorily addressed.
The Townsends argued that their proposed development satisfied the requirements of cl 3.4.1 and should be approved.
The Tribunal found that the proposed development satisfied the criteria of cl 3.4.1 and, subject to appropriate conditions, discretion could be exercised and approval granted for the proposed two grouped dwellings on Lot 13.
Introduction
These proceedings involve an application by Mrs Barbara Townsend and Mr Frank Townsend (applicants) brought pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Shire of Dardanup (Council, respondent) to refuse an application for approval to develop two grouped dwellings at No 25 Ennis Street, Eaton (site, Lot 13).
The site and the locality
Lot 13 has an area of 1016 square metres, a frontage of 22.53 metres to Ennis Street at the northern end and a rear boundary of 20.9 metres. The site rises about 0.5 metres from front to rear. There is currently a small weatherboard and iron house on the site.
Ennis Street curves from the south‑west to the north‑east. On the north side of Ennis Street is an extensive recreation reserve which includes an oval, tennis courts and a hall and beyond which is the Collie River. The south side of Ennis Street comprises residential lots, mostly about the same size as the site.
On the Ennis Street frontage of the street block, five of the 17 lots have either been approved for or contain two grouped dwellings. The remaining lots have single houses with some containing newer two‑storey houses. The parallel street to the south, Eagle Crescent, has R12.5 coding on the northern side abutting the rear of the Ennis Street lots and an R30 coding on the southern side.
Planning controls
The site is zoned residential in Shire of Dardanup Town Planning Scheme No 3 (TPS 3) with a density coding of R12.5. Under cl 3.2.3 of TPS 3, unless otherwise provided, the development of land for residential purposes shall conform to the provisions of the Residential Design Codes of Western Australia (2002) (Codes).
Under the heading "Grouped Dwelling Developments", cl 3.4.1 of TPS 3 reads:
"For development of not more than two grouped dwellings in the 'Residential' zone, Council may, in a particular case but only where sewerage is available, modify the development standards to the R20 Code requirements. In assessing proposals Council will have regard to access, servicing, topography, drainage, amenity and any other matters Council considers appropriate."
Under the Codes, the site area per dwelling for a single house or grouped dwellings is found in Table 1 and is:
| Density | Minimum Site Area | Average Site Area |
| R12.5 | 700 square metres | 800 square metres |
| R20 | 440 square metres | 500 square metres |
The Zoning Table at Appendix 1 of TPS 3 shows the use "two grouped dwellings" with a "PS" designation. PS is stated to mean that the use is permitted if “special approval” is given by the Council and if the use complies with any conditions imposed and the relevant TPS 3 standards.
Proposed development
In March 2007, the applicants applied to the Council for planning approval for two single storey grouped dwellings, one at the Ennis Street frontage, with the other behind. A common driveway along the western boundary would provide access to the garages of both dwellings.
The refusal
The respondent refused the application for the reasons:
"(i)that Council has a 'seriously entertained proposal' (Amendment No 146) that prohibits 'two grouped dwellings' at Lot 13 Ennis Street, Eaton.
(ii)the proposed development does not comply with the Residential Design Codes requirements at the R12.5 density code."
Comment on the reasons for refusal
Relevant to the respondent's reasons for refusal was that at the time it made the decision it had formally adopted proposed Amendment 146 to TPS 3. This amendment would delete cl 3.4.1 and insert a new cl 3.4.1 which would permit grouped dwellings only in an identified area on the Scheme Map coded R12.5/R20. Lot 13 was not in the area to be coded R12.5/R20.
At the hearing on 4 July 2007, Mrs Elizabeth Edwards for the respondent argued that Amendment 146 was seriously entertained and as it was with the Minister for Planning and Infrastructure for final approval it had advanced to the point where it should be afforded sufficient weight to provide a reason for refusing the application.
Mr Jim Weston, a designer and draftsman who appeared for and gave evidence on behalf of the applicants, submitted that Amendment 146 should not be given determinative weight until the position of the Minister was known.
On 9 August 2007, subsequent to the hearing, the respondent wrote to the Tribunal and the applicants, advising that it had received advice from the Department for Planning and Infrastructure that the Minister had not supported Amendment 146. The respondent quite properly provided this advice consistent with the requirement of s 30 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the decision-maker use its best endeavours to assist the Tribunal to make its decision on the review.
The role of the Tribunal in a review matter such as this is found in s 27 of the SAT Act, which states:
"Nature of the hearing
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision."
Amendment 146 is now not going to proceed having been rejected by the Minister. Amendment 146 must now be afforded no weight as a seriously entertained planning proposal in the determination of the matter. It is necessary that the matter now be considered in the light of the discretion available under cl 3.4.1 of TPS 3.
The issue
Should the discretion available under cl 3.4.1 of TPS 3 be exercised in favour of the proposed development and the two grouped dwellings be allowed on Lot 13?
The parties' submissions
Mr Robert Quinn, a town planning officer with the Shire of Dardanup called by the respondent to give evidence, said an R20 development could not be considered as of right for sewered R12.5 coded lots of greater than 1000 square metres. It was necessary that discretion be exercised in the application of cl 3.4.1 to guide development in suitable areas. If this were not the case then cl 3.4.1 would effectively be rezoning all sewered residential lots greater than 1000 square metres to R20 in the whole of the Shire, and this was not the intent.
Mr Quinn questioned two aspects of the proposed development. The first was the need for fill. He acknowledged, however, that this would be about 0.5 metres and effects of any overlooking could be addressed by conditions. The second item was the level of services, specifically a shop. Mr Quinn said the shop mentioned by Mr Weston provided an inadequate level of service because it was associated with a service station with a limited range of goods and was further than 400 metres away if walking.
Mr Weston submitted that the proposed development satisfied the criteria listed in cl 3.4.1 because the site was over 1000 square metres, had no access problems, had sewerage available and could be drained. In his opinion the topography could easily be made suitable and any amenity or overlooking problems arising from the limited amount of fill could be addressed by conditions. The available services included open space and recreation facilities over the road and a small shopping centre for daily needs within walking distance.
Mr Weston said that the development would not be contentious in Ennis Street. Adjoining neighbours had written advising of no objection and there were five other lots in Ennis Street either with or approved for the development of two grouped dwellings. In his opinion, the development would enhance the street because it would remove the poor standard house now on the site.
Comment
From the submissions by both parties the Tribunal has formed the view that, subject to conditions, including fill levels and screening to satisfy overlooking requirements, the two grouped dwellings could be accommodated on the site.
The only other issue was the standard of the nearby shopping services. The nearest shopping centre was described as being about 400 metres away "as the crow flies" and comprising a restaurant, hairdresser, liquor store, a garden centre and nursery and a fuel outlet with a Star Mart with some day‑to‑day needs. It was contended by the respondent that the range of groceries at this shop was limited and it was therefore inadequate to serve the proposed development.
The range of day‑to‑day groceries within walking distance would appear to be limited in such a shop, but it would provide for some rather than no basic daily needs. There are other shopping centres in Eaton with a larger range of goods within about 2km, and so the Tribunal considers that the limited size of the nearby shop is not such as to be fatal to the development proposal.
Draft conditions
As ordered by the Tribunal, the respondent provided, without prejudice to its position, a draft schedule of conditions it would want imposed should the Tribunal be minded to approve the application.
The respondent recommended 17 conditions. Mr Weston made comment on condition 'C', saying that the screening of windows would depend upon the level of fill required and questioning whether a standard 1800 high fence would be solve part of the problem. Condition 'C' reads:
"Adequate screening of Unit 2, bedroom 2 window being provided in accordance with clause 3.8.1 A1 of the Residential Design Codes."
The Tribunal notes that cl 3.8.1 of the Codes is triggered by a major opening to a habitable room being more than 0.5 metres above the natural ground level. Another of the conditions, which is not contentious, requires a minimum finished floor level of 2.80 AHD. It should therefore be easily ascertained how much fill above natural ground level is required and whether the resultant floor level is such that cl 3.8.1 is to be complied with.
The Tribunal asked for clarification of condition 'A' which referred to the development being "generally in accordance" with the approved plans. Ms Edwards explained that the condition was to accommodate any changes required by other conditions of the approval. The Tribunal considers the condition could be more precise in this regard.
Conclusion
Clause 3.4.1 of TPS 3 sets out criteria to be addressed to determine whether discretion could be exercised in favour of allowing two grouped dwellings at a density of R20 on a residential zoned lot coded R12.5. If the criteria are satisfied, a special approval may be granted for the development.
The parties addressed the criteria and the Tribunal found that, subject to appropriate conditions, most requirements would be satisfied. The provision of servicing by a nearby shopping centre was found to be marginal, but not to the degree that, of itself, it should be a reason for not allowing the development.
The Tribunal has concluded that the discretion available under cl 3.4.1 of TPS 3 can therefore be exercised in favour of the application and conditional approval be granted for the proposed two grouped dwellings on Lot 13. The conditions as recommended by the respondent are considered to be appropriate for the development, subject to the plans being more particularly identified.
Orders
1.The application for approval to develop two grouped dwellings at Lot 13 Ennis Street, Eaton is allowed.
2.The development is approved, subject to compliance with the following conditions:
1.All development being in accordance with the plans dated 13 March 2007 which formed part of the development application to the Council, subject to any amendments required by these conditions.
2.This approval remains valid provided that the development is substantially commenced within two (2) years and completed with three (3) years after the approval date. If development has not been substantially commenced within two (2) years and completed within three (3) years, the approval shall lapse and no further works shall be carried out without further approval from Council.
3.Adequate screening of Unit 2, Bedroom 2 window being provided in accordance with cl 3.8.1 A1 of the Residential Design Codes of Western Australia (2002).
4.Reversing bay for Unit 1 being extended by an additional 2.5m to provide an adequate paved reversing bay.
5.An amended plan being submitted for approval demonstrating compliance with Conditions 3 and 4.
6.A landscaping plan being submitted to the Planning Department prior to the landscaped areas being established and the development being occupied. Landscaping is to be provided in front setback areas and adjacent to any area of common property.
7.All verge areas abutting the property being suitably grassed or planted and maintained to the satisfaction of Council. The verge area shall not be used for car parking purposes, trade display, storage and/or signage without the prior written approval from Council's Planning Department.
8.External clothes‑drying facilities being effectively screened from public view to the satisfaction of Council.
9.Bin storage areas being conveniently located and screened from public view in accordance with the requirements of the Residential Design Codes of Western Australia (2002).
10.Fencing forward of the building line being no higher than 1.2 metres unless otherwise approved by the Council.
11.Any wall or fence within 1.5m of a vehicle access point being truncated or reduced to no higher than 0.75 metres.
12.The accessway(s), parking area(s) and turning area(s) shall be constructed, kerbed, formed, graded, drained and finished with a hard‑standing surface or equivalent by the developer to an approved design and shall be maintained to a standard satisfactory to Council.
13.Crossover is to be constructed to Council's specifications.
14.The car parking layout and dimensions complying with the requirements of the Residential Design Codes of Western Australia (2002).
15.Accessways or driveways are to be no closer than 0.5m to a side boundary or street pole, located to avoid street trees, no closer than 6.0m to an intersection and aligned at right angles to the street in accordance with the requirements of the Residential Design Codes of Western Australia (2002).
16.All storm water runoff being contained on site unless a suitable alternative is approved by Council.
17.Habitable dwellings having a minimum finished floor level of 2.80 AHD.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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