Turner and Shire Of Northampton
[2006] WASAT 294
•26 SEPTEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TURNER and SHIRE OF NORTHAMPTON [2006] WASAT 294
MEMBER: MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 26 SEPTEMBER 2006
FILE NO/S: DR 121 of 2006
BETWEEN: GARY TURNER
Applicant
AND
SHIRE OF NORTHAMPTON
Respondent
Catchwords:
Town planning - Development - Extension to an existing shed - Local planning policy providing less stringent requirements than those expressly permitted by the Codes - Exercise of discretion - Streetscape - Impact on visual amenity of residents or neighbouring property
Legislation:
Residential Design Codes of Western Australia 2002, cl 2.6, cl 2.6.2i, cl 3.10.1, cl 3.10.1 A1(iii)
Shire of Northampton Town Planning Scheme No 9 – Kalbarri Townsite, cl 1.6, cl 5.5.3, cl 6.1, cl 6.5.2, cl 6.5.2(a), cl 6.5.2(b), cl 6.5.2(c), cl 6.5.2(f), cl 5.2(m), cl 6.5.3, cl 8.9
Result:
The application for review is allowed.
Planning consent is granted subject to one condition.
Category: B
Representation:
Counsel:
Applicant: Mr G Turner
Respondent: Mr M Connell (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Northampton
Case(s) referred to in decision(s):
Aspen Pty Ltd and State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Turner applied to the State Administrative Tribunal for review of the decision of the Shire of Northampton, refusing planning consent for an extension to an existing shed on Lot 371 Nairn Place, Kalbarri.
The Shire of Northampton asserted that the proposal would have a detrimental impact on the amenity of the area in general and create a precedent for the establishment of similar sized outbuildings in residential areas of Kalbarri.
The evidence produced by Mr Turner demonstrated that the shed extension would have minimal impact on the streetscapes of Smith Street, Patrick Crescent or Nairn Place and would not have a detrimental impact on the visual amenity of the affected neighbouring properties. The Tribunal determined that the application did not warrant refusal and in the exercise of its discretion imposed a condition that required the planting of several semi-mature trees along the boundaries of the adjoining neighbouring properties.
Introduction
Mr Gary Turner (applicant) made application to the Shire of Northampton (respondent) for planning approval for an extension to the existing shed on Lot 371 (No 3) Nairn Place, Kalbarri (subject land).
The development application was refused by the respondent for the following reasons:
"1.The application is not in accordance with Council's 'Outbuildings' Local Planning Policy, which specifies a maximum outbuilding area of 90 square metres or 10% in aggregate of the site area, whichever is the lesser; and
2.Approval of the application would likely create an undesirable precedent for the establishment of outbuildings of a similar size to the detriment of the streetscape and amenity of residential area in the Shire."
The applicant, on 13 April 2006, made application to the State Administrative Tribunal to have the decision reviewed.
Subject land
The subject land is referred to as Lot 371 (No 3) Nairn Place, Kalbarri and is 954 square metres in area.
There is an existing residence on the subject land that was constructed in the 1970s. The existing residence has been built on an angle (approximately 40 degrees) to the front boundary.
The existing shed (outbuilding) is located at the rear of the property, set back 1.0 metres from the rear boundary at its closest point. It consists of a carport, measuring 36.3 square metres in area and a lockable area (54.5 square metres), for the storage of goods such as power tools, bench drills, planers and the like.
Proposal
The application proposes a 3.5 metre by 6.14 metre (21.5m square metres) extension to an existing 14.8 metre by 6.14 metre (90.8 square metres) shed. The aggregate area of the outbuilding would equate to 112.36 square metres. The height of the extension is to be the same as the existing shed, which has a wall height of approximately 2.75 metres and a ridge height of 3.3 metres. The structure is to be clad with colorbond "Smooth Cream", with a "Mist Green" trim to match the existing shed.
According to the applicant, the proposed extension is to be primarily used as an art studio to carry out pursuits such as fine art painting, glass sculpture and pottery and to accommodate the necessary equipment to conduct these activities.
Planning framework
The subject land is zoned "Residential" with a permitted site density of R30 under the Shire of Northampton Town Planning Scheme No 9 – Kalbarri Townsite (TPS 9 or Scheme).
Clause 1.6 of TPS 9 sets out the Objectives of the Scheme, of which subclause (f) is the most relevant to this application:
"(f)to provide for such development as is required to accommodate the lifestyles appropriate to the area;"
Clause 6.1 set out the circumstances where planning consent of the Council is required prior to commencement of development. As the proposal requires the exercise of discretion to vary the provisions of the Residential Design Codes of Western Australia 2002 (the Codes) planning consent is required in this instance.
Pursuant to cl 5.5.3 of TPS 9, development of land for any of the residential purposes dealt with by the Codes shall conform to the provisions of those Codes. The relevant provisions relating to outbuildings are contained in Element 10 – Incidental Development (Element 10), with reference to Element 3 – Boundary Setbacks and Table 1 – General Site Requirements (Table 1).
Clause 6.5.3 of TPS 9 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Further, cl 6.5.2 sets out the matters that the Council is to have regard to in determining an application. The relevant matters relating to this application are as follows:
• the objectives and provisions of the Scheme (cl 6.5.2);
• the nature of the proposed development in relation to the development either existing or proposed on adjoining land (subclause (a));
• the size, shape and character of the lot upon which the development is to be carried out and the influence which these factors may have on the siting and nature of any new building (subclause (b));
• the design and external appearance (including exterior cladding) of the building and its effect upon the amenity of the existing buildings and the area generally (subclause (c));
• the existing and likely future amenity of the locality within which the development is to take place in particular the area generally (subclause (f));
• any other matters relating to town planning, urban design, and public interest (subclause (m)).
Clause 8.9 of the Scheme empowers the Council to make planning policies in order to achieve the objectives of the Scheme. Policies can related to parts of all of the Scheme Area and relate to one or more aspects of the control of development. The Council is not bound by a town planning scheme policy but is required to take into account the provisions of the Policy and Objectives which the Policy was designed to achieve before making its decision in respect of any application for planning consent. The respondent has adopted Local Planning Policy – Outbuildings (Outbuilding Policy) which, amongst other things, deals with floor area requirements for outbuildings.
Respondent's arguments
The respondent contended that the proposal would have a detrimental impact on the amenity of the area in general and would create a precedent for the establishment of similar sized outbuildings in residential areas of the Shire. The respondent did not lead any evidence to demonstrate how the extension to the existing shed would have a detriment impact on the amenity of the area.
The respondent argued that it had already acknowledged that there is a genuine and legitimate need for an increase in the maximum size of outbuildings from the 60 square metres as provided for in the Codes by allowing a further 50% increase in size to 90 square metres via its Outbuilding Policy. The respondent considered that the applicant's argument that 90 square metres was insufficient for the amount of storage required by the individual was not considered sufficient grounds for relaxation of the Outbuilding Policy, and if upheld would render the policy futile.
Applicant's arguments
The applicant argued that the placement of the house on the subject land rendered it impracticable to attach a carport to the existing dwelling and as a consequence, a portion of the existing outbuilding was allocated as a carport. He maintained that the option of extending off the existing shed was a more logical, simpler and aesthetically appealing than constructing a garage/carport off the existing dwelling.
The applicant contended that the proposed extension would have minimum visual impact and would not detract from the streetscape or neighbouring properties. Mr Turner submitted several photographs in an attempt to substantiate his assertions. He also alluded to a number of over height/sized sheds in the townsite and inferred that the respondent had relaxed its codes to enable the structures to be built. Mr Turner did not identify any specific sites.
The applicant also drew the Tribunal's attention to the fact that the subject land was one of the larger residential lots in the townsite and asserted that there was ample area for the proposed shed extension. Furthermore, the applicant argued that the subject land was code "R30" under TPS 9 and therefore capable of accommodating multiple dwellings. The applicant contended that if the subject land was redeveloped in such a fashion in the future, the resultant roof areas would be considerably larger than that proposed by the extension and the existing structures on site.
Tribunal consideration
The Codes, under Element 10, set out the acceptable development provisions applicable to outbuildings. Clause 3.10.1 A1 iii specifies that "Outbuildings that do not exceed 60 sqm in area or 10 per cent in aggregate of the site area, which ever is the lesser" are deemed to meet the relevant performance criteria. The evidence shows that the respondent did not consider the requirements set out in the Codes to be sufficient in the context of the local area and as such adopted a local planning policy pursuant to cl 8.9 of the Scheme and cl 2.6 of the Codes. The Outbuilding Policy provides less stringent requirements than those expressly permitted by the Codes (cl 2.6.2i.) and specifies the following:
"For residential area, in addition to the Acceptable Development Criteria as detailed in Element 10 (3.10.1 A1) of the Residential Design Codes, the following additional Acceptable Development Criteria shall apply:
(a)do not exceed 90 square metres in area or 10% in aggregate size of the site area, whichever is the lesser;
(b)do not exceed a wall height of 3.0m; and
(c)do not exceed a ridge height of 5.0m."
Given this framework, the only aspect of the proposed extension that does not comply with the Acceptable Development requirements is the total area of the outbuilding, as the combined area exceeds 90 square metres. The Outbuilding Policy provides for such situations and includes the following provision:
"Any relaxation to the above standards will require full justification from the applicant demonstrating the need for an increased outbuilding size and/or that sufficient other means will be available to protect the visual amenity of the area and that of adjoining residences."
As the proposal departs from the acceptable development requirements, the proposal is required to be assessed against the performance criteria specified in Element 10, which states:
"Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties."
The respondent, although it asserted that the proposal would have detrimental impact on the amenity of the area in general, did not submit any evidence supporting this assertion. Furthermore, the respondent failed to lead any evidence relevantly addressing the performance criteria. It would appear that the respondent placed considerable weight on the area limitations specified in the Outbuilding Policy and considered there was insufficient reason to depart from the limitation specified in the policy, albeit that the requirements related to varying the acceptable development provisions of the Codes. The evidence or lack thereof, suggests that the respondent failed to assess the proposal against the performance criteria as specified in cl 3.10.1 of the Codes.
According to the respondent's submissions the Council has not approved any applications that involve "an increase in the maximum size of an outbuilding in the residential areas of Kalbarri" since the adoption of the Outbuilding Policy. If the Council wishes to preclude the possibility of a performance based approach and for the 90 square metres to operate as a maximum development standard, then the policy needs to be amended to expressly remove the possibility of reliance on the performance criteria of Element 10 of the Codes.
The respondent also raised concerns that approval of this application would create a precedent for the establishment of similar sized outbuildings in residential areas of the Shire. The Tribunal accepts that there are circumstances where an approval could be used as a precedent by others to advance a similar proposal elsewhere. However, as pointed out in Aspen Pty Ltd and State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account as each application must be considered on its merits.
The photographs submitted by Mr Turner demonstrate that the proposed shed extension would have minimal impact on the streetscapes of Smith Street, Patrick Crescent or Nairn Place. Furthermore, the photographs show that the proposed extension to the shed would not have a detrimental impact on the visual amenity of the affected neighbouring properties.
The Tribunal, in determining the application, is also required to have regard to the relevant matters set out in cl 6.5.2 of the Scheme. Taking such matters into consideration, there is no evidence before the Tribunal that suggests refusal of this application is warranted.
However, the Tribunal considers it would be appropriate in the exercise of discretion to require landscaping between the shed extension and the common boundaries of the adjoining properties to soften the appearance of the extension. The landscape should be in the form of two trees planted along the boundary facing Patrick Crescent and one additional tree along the boundary facing Smith Street. The species of tree should be nominated by the Council and be planted in a semi-mature state.
Orders
1.The application for review is allowed.
2.Planning consent is granted for the extension to an existing shed as shown on the attached plan marked Annexure "A" on Lot 371 (No 3) Nairn Place, Kalbarri, subject to the following condition:
(i)Two trees shall be planted along the boundary facing Patrick Crescent and one additional tree planted along the boundary facing Smith Street. The species of tree should be nominated by the Council and planted in a semi-mature state.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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