Twyman and City Of Canning

[2009] WASAT 146

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   TWYMAN and CITY OF CANNING [2009] WASAT 146

MEMBER:   MR J JORDAN (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   29 JULY 2009

Edited reasons delivered orally on 29 JULY 2009

FILE NO/S:   DR 217 of 2009

BETWEEN:   ADRIAN TWYMAN

DIANE TWYMAN
Applicant

AND

CITY OF CANNING
Respondent

Catchwords:

Town planning - Development - Condition of retrospective development approval - Development of outbuilding sea container - Condition requiring the sea container to be set back level with the building line of the house - Shift of 3 metres required - Other conditions of approval require landscaping to provide effective screen and painting of sea container - Development approval granted for only two years - Sea container set back 18 metres from front boundary - Site is 1 hectare special rural lot - Objective of zoning is to maintain rural character and amenity - View of site conducted - Screen planting has been carried out and the sea container has been painted

Legislation:

City of Canning Town Planning and Development No 40 (WA), cl 8.4.1(a), cl 8.4.1(e), Table 8A
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 24, s 60

Result:

The application for review is allowed
Condition 7 is hereby deleted from the retrospective conditional development approval granted by the City of Canning on 28 April 2009 for the outbuilding sea container at 23 Livingston Drive, Canning Vale, Western Australia

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Mr S Maqbool (Representative)

Solicitors:

Applicant:     Self-represented

Respondent:     City of Canning

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The City of Canning granted retrospective planning approval for an outbuilding sea container at 23 Livingstone Drive, Canning Vale.  The applicants applied to the Tribunal for review of a condition that would have required the container to be shifted back a further 3 metres from the front boundary to address concerns about impact on local rural character.

2. The Tribunal found that there was a case for deleting this condition.  This was because the development approval was for two years only, the sea container was 18 metres from the frontage and other conditions required that the container be painted a sympathetic colour and be screened by vegetation.  The Tribunal allowed the application for review and deleted the condition requiring the additional set back from the approval.

Introduction

1. The representatives of the parties said that their respective submissions in respect of the review were set out fully in the documents filed with the Tribunal and provided to each other.  These documents were identified as:

   •Respondent's statement of issues, facts and contentions, dated 24 June 2009;

   •Respondent's bundle of documents provided pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), filed 26 June 2009;

   •Witness statement of Mr Shakeel Maqbool, town planner, dated 23 July 2009, filed by the respondent; and

   •Applicants' statement of issues, facts and contentions, and additional comment together with the applicants' bundle of documents, dated 13 July 2009.

2. The Tribunal visited 23 Livingstone Drive, Canning Vale, to conduct a view on 29 July 2009, accompanied by Mr Adrian Twyman, Mrs Diane Twyman, Mr Maqbool and Mr Frank Polglaze, senior planning officer of the respondent.

3. The parties agreed, and the Tribunal accepted, that the matter could be determined on the documents pursuant to s 60 of the SAT Act.

4. Following the view, the Tribunal gave consideration to the relevant matters and handed down and ex tempore decision.  The consideration by the Tribunal and its decision follow.

Site, locality and the development

1. Adrian and Diane Twyman (applicants) own 23 Livingstone Drive, Canning Vale (site).  Livingstone Drive is a curving road with single houses set well back from the road on vegetated lots of about 1 hectare.

2. The site and neighbouring lots are zoned Special Rural in the respondent's City of Canning Town Planning Scheme No 40 (TPS 40).  The site has an area of about 1 hectare with a frontage of about 118 metres to Livingstone Drive at the north­east boundary.  The applicants' house on the site is at the south­eastern end of the site.  The site is vegetated with mostly native species except for a clear grassed area adjacent to the house.  Scaling from the application plan, reference 51156 dated 12 March 2008, the double garage of the house is set back about 21 metres from the street frontage at the end of a bitumen driveway.  The bulk of the house is set back about 28 metres. 

3. In November 2008, the applicants applied to the City of Canning (respondent or Council) for retrospective planning approval for an outbuilding sea container on the site.  The outbuilding sea container is 6.050 metres long, 2.42 metres wide and 2.6 metres high.  It scales at about 18 metres back from the front boundary and about 4 metres to the north­west of the garage.

Council's decision

1. On 28 April 2009, the respondent granted conditional retrospective approval for the outbuilding sea container.  The decision included the following:

   Council's Retrospective Development Approval to the proposed development described on the application dated 27 November 2008, and the accompanying plans is GRANTED for a period of 24 MONTHS ONLY subject to the following conditions:

   ...

   4.The Applicant shall undertake the external painting of the sea container in a colour that is similar to or complementary to the colour of existing buildings on the property and to the City's satisfaction within twenty eight (28) days of the date of this approval, having regard to the provisions of Clause 8.4.1 of the City of Canning Town Planning Scheme No 40.

   5.The Applicant shall submit a plan detailing landscaping between the proposed structure and the front property boundary (Livingstone Drive) within twenty eight (28) days of the date of this approval.  The plan shall incorporate landscaping which will provide effective screening of the sea container.  Landscaping shall be established within ninety (90) days of the date of this approval and shall thereafter be maintained in accordance with an endorsed landscape plan.

   ...

   7.The Applicant shall relocate the sea container in order that it does not project forward of the alignment of the dwelling, as marked in red on the approved plans.  Relocation to the satisfaction of the City is to occur within 42 days of approval.

2. Condition 7 would require the sea container to be shifted back 3 metres to align with the front of the garage.

3. The applicants then filed with the Tribunal an application for review of condition 7 pursuant to s 252(1) of the Planning and Development Act 2005 (WA).

Applicants' position

1. The applicants said that when they enquired at the respondent's office, they were informed that the minimum setback requirement in the Special Rural zone was 15 metres from the front boundary (which the Tribunal notes is the minimum setback distance for Special Rural zone development at Table 8A of TPS 40).  The applicants said it would cost up to $8,000 to hire the machinery necessary to move the container the required 3 metres because of its size and weight.  In the opinion of Mr Twyman, shifting the sea container would make no difference to how visible or not visible it would be.  He pointed out that there is no footpath on Livingstone Drive so any pedestrians would have to walk on the road.

2. Mr Twyman said the container had now been painted a shade of green to blend in with vegetation and additional planting had been carried out between the sea container and the road frontage.  It was the applicants' submission that the planting had enhanced the 'natural rural area' and the container was no longer visible from the road.

Respondent's position and the viewing of the site by the Tribunal

1. The respondent said that the conditions of approval were imposed because of concern that the sea container would have a significant visual impact on the local streetscape and rural character.  When viewed in January 2009, the container was considered to be an inappropriate colour and was clearly visible from the road.

2. The respondent said the intent of condition 7 was to assist in achieving the objective at cl 8.4.1(a) of TPS 40 of preserving the amenity of the zone by maintaining the rural character and landscape.  Clause 8.4.1(e) of TPS 40 provides that the minimum setback of Table 8A could be increased if considered desirable.  The respondent considered it desirable at the time the application was decided that the setback be increased.

3. The respondent also referred to a draft policy on sea containers, currently being advertised, that referred to containers not being forward of the main building line.  The respondent said that condition 7 was considered, when it was imposed, to minimise any impact while still allowing the sea container to be retained for the approval period.

4. At the time of the view of the site and immediate locality, the Tribunal was able to confirm the statements of Mr Twyman and illustrated in recently taken photographs provided by both parties.  Consistent with the requirements of condition 4 and condition 5 respectively, the sea container has been painted a grey-green colour and screen planting has been carried out.

5. Mr Maqbool, acknowledged that with the above changes, '... the sea container was almost entirely screened from Livingstone Drive, and therefore unlikely to be visible from the public realm'.  Mr Maqbool expressed the opinion that '... provided that the level of screening is maintained ... and the exterior colour of the sea container remains in agreement with its rural surroundings ... the changes made by the applicant reasonably accord with the Scheme objectives'.

Comment

1. The Tribunal has noted the applicants' submission that the sea container was placed on the site in a location considered appropriate in good faith.  The background circumstances were not, however, pursued by the parties in their submissions.  The plans show and the view confirmed that the sea container is set back from the front boundary about 18 metres, which is greater than the minimum set back required by TPS 40 for the Special Rural zone.  The Tribunal also noted that the container when placed on the site was of a colour which contrasted with its surroundings and was clearly visible from the road.

2. The sea container is set back a distance that provides an opportunity for screening by vegetation.  The viewing of the site confirmed that planting to date has achieved substantial screening of the sea container.  The sea container is also now a colour which blends with its surroundings.  The view of the site revealed that as only glimpses of the sea container can now be had from a few points in the road and so the development has a minimal visual impact on the character of the locality.

3. The effect of the planting and painting is considered by the Tribunal to achieve an outcome consistent with the amenity objectives of the zone and the draft sea container policy.

4. The location of the sea container forward of the building line is inconsistent with the draft policy.  Significant in this matter, however, is that the respondent has granted a development approval for the out building sea container limited to only two years.

5. The Tribunal has concluded that in circumstances where compliance with the other conditions of development approval will ensure that the sea container will have minimal impact on the local character and amenity for the life of the development, there is a case for deleting condition 7 from the approval.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is allowed.

   2.Condition 7 is hereby deleted from the retrospective conditional development approval granted by the City of Canning on 28 April 2009 for the outbuilding sea container at 23 Livingstone Drive, Canning Vale, Western Australia.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J JORDAN, MEMBER