Wignall and City Of Albany - [2009] WASAT 73

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WIGNALL and CITY OF ALBANY [2009] WASAT 73

MEMBER: MR J JORDAN (MEMBER)

HEARD: 9 FEBRUARY 2009

DELIVERED : 23 APRIL 2009

FILE NO/S: DR 244 of 2008
CC 1019 of 2008
DR 67 of 2009

BETWEEN: KATIE WIGNALL
Applicant
AND
CITY OF ALBANY
Respondent

Catchwords:

Town planning - Planning and Development Act 2005 (WA), s 214(3) - Direction to remove unauthorised development - Construction of shed - Development carried out subsequent to refusal of application for development approval - Impact of the contravention of the town planning scheme - Circumstances of the contravention

Town planning - Town Planning and Development Act 1928 (WA), s 252(1) - Refusal to grant development approval - Special Rural Zone - Development of 300 square metre shed - Storage of personal belongings - Use not listed - Discretion available - Objectives of the zone - Application of outbuildings policy - Exceptional circumstances requirement - Impact on locality

Building - Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401(1)(c) - Construction of shed - Building licence not applied for - Notice requiring shed to be pulled down - Effect of planning outcomes

Legislation:

Builders' Registration Act 1939 (WA)
City of Albany Town Planning Scheme No 3, cl 3.1.14, cl 3.2, cl 5.4, cl 5.6(d), cl 6.1, Sch 1
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374, s 374(1), s 374AA(2), s 401, s 401(1)(c), s 401(3)
Planning and Development Act 2005 (WA), s 214, s 214(2), s 214(3), s 252(1), s 255(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

DR 244 of 2008 -
The application for review is dismissed
The direction, pursuant to s 214(3) of the Planning and Development Act 2005 (WA), requiring the applicant to pull down the shed is affirmed
DR 67 of 2009 -
The application for review is dismissed
The refusal to grant approval for the development of the shed is affirmed
CC 1019 of 2008 -
The application for review is dismissed
The decision to give notice to the applicant, pursuant to s 401(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA), to pull down the building is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr D Caddy (Town Planner, as Agent)
Respondent: Mr R Fenn (Town Planner, as Agent)

Solicitors:

Applicant: TDG Town Planning and Urban Design (Town Planning Consultants)
Respondent: City of Albany

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

Avalon Sheds and Stables and City of Belmont [2009] WASAT 67
D and Department for Community Development [2007] WASAT 154
Damave and Shire of Dandaragan [2008] WASAT 257
Drake and City of South Perth [2005] WASAT 271
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Stockdale and Shire of Mundaring [2006] WASAT 356

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In January 2008, the City of Albany refused an application by Ms Katie Wignall for development approval to construct a 300 square metre shed on Lot 9001 Henty Road, Kalgan. Ms Wignall then built the shed. There had also been no application made for a building licence.
In July 2008, the City of Albany served on Ms Wignall both a direction pursuant to s 214 of the Planning and Development Act 2005 (WA) requiring removal of the unauthorised building, and a notice under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) requiring that the shed erected without a building licence be pulled down.
Ms Wignall applied to the Tribunal for reviews of the direction and the notice. Ms Wignall and the City of Albany both raised the planning merit of the development in support of their respective positions. It became apparent to the Tribunal that the reviews would benefit from consideration of the planning merits of the development. Ms Wignall was granted an extension of time to file an application for review of the original development refusal. This became a third matter before the Tribunal at the hearing.
In respect of the review of the direction pursuant to s 214 of the Planning and Development Act 2005 (WA), the Tribunal concluded that because of the need to ensure no advantage was won by not complying with the law, the circumstances of the contravention of the town planning scheme and the undesirable effect of the development on the locality, the s 214 direction should be affirmed.
In respect of the review of the refusal of the application for planning consent, there were two issues arising. The first was whether there existed exceptional circumstances that would warrant relaxing the 180 square metre standard in the City of Albany's policy on outbuildings. The Tribunal found that there were no exceptional circumstances to support a variation of the standards of the outbuilding policy.
The second planning consideration was whether the 300 square metre shed would be consistent with the provisions of the City of Albany Town Planning Scheme No 3. The Tribunal concluded that because of its size, the shed would have a bulk and scale visible from most directions in this generally cleared landscape and this would have an obvious impact on the local amenity. This would be inconsistent with the objectives for this 'Special Rural' zone. The Tribunal affirmed the respondent's refusal of the application for planning consent.
In respect of the review of the notice issued pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA), which required the building constructed without a building licence to be pulled down, the Tribunal found that, as a consequence of the conclusions reached in respect of the planning refusal and the s 214 direction, it was appropriate to affirm the s 401 notice.
The Tribunal determined that the applications for review in respect of all three matters were to be dismissed.

Introduction

Ms Katie Wignall (applicant) and Mr Elton Woodhams own Lot 9001 Henty Road, Kalgan (site). The site was transferred to their ownership in September 2008. On 18 January 2008, the applicant applied to the City of Albany (respondent, City or Council), on behalf of the then owners for development approval for a shed of 300 square metres on the site. On 31 January 2008, the City refused the application for the reason that the:
Proposed outbuilding does not comply with the floor space restrictions contained within the City of Albany's Outbuildings Policy.
In May 2008, it was brought to the City's attention that a shed was being built on the site. An inspection revealed that the shed was consistent with the proposal refused in January 2008. On 4 June 2008, the City, pursuant to the Planning and Development Act 2005 (WA) (PD Act), served on the then owners written directions under both s 214(2) of the PD Act, that construction of the unauthorised building cease, and s 214(3) of the PD Act, requiring that the building be removed or pulled down, that any associated infrastructure on the land be removed and the land restored as nearly as practicable to its condition immediately before the unauthorised building was erected (the s 214 direction). Work on the building did not cease.
The applicant filed an application for review of the s 214 direction pursuant to s 255(1) of the PD Act. It was then revealed that the applicant and Mr Woodhams were under contract to buy the site, so on 18 July 2008 the s 241 direction was reissued to the applicant in the same terms. This application for review became matter DR 244 of 2008.
On 4 June 2008, the City had also issued a notice to the then owners under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) (s 401 notice). This stated that the building was constructed without a building licence having first been issued and is therefore in contravention of s 374(1) of the LGMP Act. The notice said that the contravention was the cause of objection and the notice required the owners to pull down the building to remove the cause of objection. The s 401 notice was also reissued on 29 July 2008, addressed to the applicant as the person purchasing the site. The applicant filed with the Tribunal an application for review of the s 401 notice pursuant to s 401(3) of the LGMP Act. This matter became CC 1019 of 2008. At a directions hearing on 24 November 2008, the Tribunal directed that these two matters be heard together on 9 February 2009.
The applicant, in her response to the respondent's statement of issues, facts and contentions in respect of the s 214 direction and the s 401 notice, accepted the issues stated by the respondent and generally the facts associated with them. In commenting on the contentions outlined by the respondent, the applicant raised as additional issues the planning merit of the development and contended that there was a basis for granting a development approval. This is not, as discussed in the issues below, the primary consideration in determining whether or not the s 214 direction or the s 401 notice should have been issued and whether they might be withdrawn or set aside.
The applicant's witness statement of 23 January 2009 in respect of DR 244 of 2008 states at para 2.1 that 'This application seeks a review of the decision of the City of Albany … to refuse an application for the construction of a gable roofed shed …'. The applicant then quotes the Council's decision of January 2008 refusing the development application and makes comments on the planning merit of the proposal. The statement of the respondent's planning witness also contained comment on whether the shed had planning merit.
At the hearing of 9 February 2009, the Tribunal put to the representatives of the parties that while the planning merit of the development appeared to have been the basis on which the applicant and the respondent's witnesses were approaching the matter, there was in the first instance only, before the Tribunal the applications for review of the s 214 direction and the s 401 notice. It appeared to the Tribunal that it would be of benefit in determining whether the s 214 direction and s 401 notice were to be affirmed, if there were also a review of the planning refusal issued by the respondent.
Mr Caddy, for the applicant, made an application for extension of time, as provided for under r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), for review of the planning decision issued by the respondent in January 2008, pursuant to s 252(1) of the PD Act. The Tribunal asked that the representatives of the parties each address in respect of this application the length of delay, reasons for the delay, whether there is an arguable case and whether there would be prejudice to any of the parties.
There was not seen to be any reasonable explanation for the delay from January 2008 until June 2008, when it occurred to the applicant that proceedings could be commenced in the Tribunal in respect of a decision, albeit to issue the s 214 direction, by the respondent. Subsequent to the filing of the two applications for review of the s 214 direction and the s 401 notice in June 2008, there appeared to be some confusion by the parties as to what was actually before the Tribunal for review. The Tribunal accepts that the applicant might not have readily turned her mind to how it might also have brought a review of the planning refusal before the Tribunal at this time.
The test for whether there is an arguable case is not an onerous one: Goedhart and Western Australian Planning Commission [2006] WASAT 49 at [21]. There was discretion available to grant the development approval. The applicant has maintained that approval might well have been granted because of particular circumstances and the Tribunal has accepted that there is at least an arguable case in support of this proposition.
In respect of whether there would be prejudice to any party, it appeared to the Tribunal that if consideration of planning merits was introduced as something new to the parties, then there might be prejudice. This was considered, however, to not be the case as planning merits were in the contemplation of the applicant, the applicant's representative, and the planning witness for the respondent.
The Tribunal then determined that, pursuant to r 10 of the SAT Rules, an extension of time would be granted for review of the Council's refusal of the application for planning approval for the shed, which was issued on 31 January 2008. This became matter DR 67 of 2009.

The matters before the Tribunal

The applications for review before the Tribunal were as follows:
1)DR 244 of 2008 - an application for review, pursuant to s 255(1) of the PD Act, of the direction issued pursuant to s 214(3) of the PD Act requiring the applicant to remove or pull down the unauthorised building and any associated infrastructure and to restore the land as nearly as practical to its condition immediately before the unauthorised building was erected on the site;
2)DR 67 of 2009 - an application for review, pursuant to s 252(1) of the PD Act, of the refusal by the City to grant development approval for the development of the shed on the site; and
3)CC 1019 of 2008 - an application, pursuant to s 401(3) of the LGMP Act, for review of the notice issued pursuant to s 401(1)(c) of the LGMP Act which requires the building constructed without a building licence to be pulled down.

The site, the development and the locality

The site has an area of 11.01 hectares. It is regular in shape with a northern boundary of 541 metres and a southern boundary 505.8 metres. At the western end, the site has frontage to the foreshore reserve of Oyster Harbour. At the eastern end there is a frontage of about 203 metres to Henty Road. The road frontage boundary has in it a step of about 20 metres. The site is cleared to about 400 metres from the road. The shed is set back 25 metres from the Henty Road boundary and 33 metres from the northern boundary.
The shed has a 15 metre wide, blank end wall facing Henty Road and 20 metre long sides perpendicular to the road. In the southern wall are two roller doors approximately 4 metres wide in the centre and at the eastern end a panel lift door of the same width. Directly opposite the panel lift door there is in the northern wall a second panel lift door. The floor is concrete. It is 4.8 metres to the pitch of the roof. A gravel driveway from a gate near the southern end of the front boundary curves around to a gravel hardstand area across the front of the southern wall in front of the doors with an extension of the driveway around to the rear panel lift door. The shed is metal, an olive green colour and appears to be constructed of all new materials. It is used for the storage of equipment and vehicles for recreational use, for work as a bobcat operator and for maintenance of the site.
The site is one of a number of lots of between the 11 hectares and about 7 hectares west of Henty Road and between about 5.7 hectares and 2.4 hectares east of Henty Road. The site falls gently to the west to the foreshore reserve. Lots to the north and east of Henty Road are of higher elevation.
The Tribunal viewed the site and locality in the company of the representatives of the parties and the applicant. A property at Little Grove with a large outbuilding was also viewed.

Planning and building framework

Under the City of Albany Town Planning Scheme No 3 (TPS 3), the site is zoned 'Special Rural' and is within Area 6 in Sch 1 (SR6 zone). The objective of land zoned 'Special Rural' at cl 3.1.14 of TPS 3 is:
To provide areas where members of the community who desire to live in a rural atmosphere may engage in a variety of activities appropriate to their area (as indicated in 'Schedule 1' to this Scheme), which might include hobby farming, horse breeding, rural residential retreats and intensive agriculture, if it is considered that such use is consistent with the preservation of the rural landscape and amenity.
The specific objective in Sch 1 of TPS 3 for the SR6 zone is, at cl 2:
… to provide a combined hobby farm and rural retreat area with an emphasis on the merging of development with the landscape and the minimisation of nutrient export.
Clause 5, Location of Buildings and Structures of SR6 zone in Sch 1 of TPS 3 requires a 15 metre setback distance from relevant boundaries for new buildings and structures. The development exceeds these setbacks.
Clause 6.1 of SR6 zone in Sch 1 of TPS 3 states that 'outbuildings shall be designed and constructed of materials which allow them to blend into the landscape of the site'. The colour of the shed would appear acceptable. The size is in dispute.
Clause 5.6(d) of TPS 3 requires for a 'Special Rural' zone that 'a "planning consent" is required prior to the commencement of any development' except where consistent with the enjoyment of a house. There is no house on the site. A shed used for storage of personal possessions on an otherwise vacant lot is not a use listed in the use class of 'Table 1 - Zones' of TPS 3. Under cl 3.2 of TPS 3 the Council can conclude that the use is consistent with the zone and grant approval or determine that the use is not consistent with the objectives of the zone and deem it not permitted.
Clause 5.4 of TPS 3 sets out matters to which it is required to have regard when considering a development. These include:
(a)the aims and provisions of the Scheme …
(b)the requirements of orderly and proper planning …
…
(f)any Town Planning Scheme Policy adopted by the Council under clause 6.9, and any other plan or guidelines adopted by the Council under the Scheme;
…
(i)the compatibility of a use or development with its setting;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(zb)any other planning consideration the Council considers relevant.
The Council has adopted a policy entitled 'Outbuildings' (Outbuilding Policy). The current version was adopted on 16 October 2007. The Outbuildings Policy applies to various zones including 'Special Rural'. Outbuildings are identified as buildings 'which are not substantially connected to a dwelling'. Under 'Background', in the Outbuildings Policy, it states:
The City of Albany knows that families have varying needs for outbuildings (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 large outbuildings on larger lots.
The Outbuilding Policy also states that outbuildings may result in problems because:
Unlike most dwellings, outbuildings are usually very bland metalclad structures devoid of architectural features such as windows, verandahs, 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.
Under the heading 'Aim' of the Outbuildings Policy it states:
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 locality, or the City as a whole.
At cl 3 of the Outbuildings Policy it states 'the specific policy objectives and requirements for the different zones are set out in Table 1'. Table 1 includes:

Zoning	Max Wall Height	Max Ridge Height	Max Floor Area (combined floor area of all outbuildings on lot)	Special Requirements
Special Rural Zone (lots greater than 2 ha)	4.2 metres	4.8 metres	180 square metres	Refer relevant planning scheme requirements for siting and materials

Section 7 of the Outbuildings Policy is headed 'Planning Scheme Consent' and states:
Any variations to the above Policy will require the applicant to demonstrate exceptional circumstances as to why the policy should be relaxed with the proposal being presented to an ordinary meeting of Council.

In respect of the construction of the shed, pursuant to s 374 of the LGMP Act:
(1)No person shall ‑
(a)lay out for building, or commence or proceed with the building on, land in a district;
(b)…
until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence in the prescribed form …

The issues

The Tribunal has found that, having regard to the statements of the parties, the issues arising in respect of the three matters are as follows:
1)The issue arising in respect of DR 244 of 2008:
Whether the direction under s 214(3) of the PD Act requiring the shed to be pulled down and the site to be restored is a suitable response.
2)The issues arising in respect of DR 67 of 2009 ‑ the review of the development refusal pursuant to s 252(1) of the PD Act:
i)Whether the need for the shed, as demonstrated by the applicant, constitutes exceptional circumstances and therefore warrants relaxation of the floor space standard as provided for in the Outbuildings Policy; and
ii)Whether the shed as built is consistent with the objectives of the zone and the matters required to be considered under TPS 3.
3.The issues arising in respect CC 1019 of 2008:
Whether the serving of notice under s 401(1)(c) of the LGMP Act requiring the shed to be pulled down and the restoration of the site is a suitable response.

Discussion

The issue arising in respect of DR 244 of 2008

Whether the direction under s 214(3) of the PD Act requiring the shed to be pulled down and the site to be restored is a suitable response.

Section 29(3) of the State Administrative Tribunal Act 2004 (WA) provides that the Tribunal may affirm, vary or set aside a decision on review. The Tribunal is therefore required to determine whether, in the circumstances, the s 214 direction is a suitable response and is to be affirmed or whether it should be varied or set aside.
In weighing this issue, the Tribunal had regard to the considerations identified by the Tribunal in Drake and City of South Perth [2005] WASAT 271 at [93] ‑ [97]. The first of these is the expectation that in the interests of proper and orderly planning, planning laws should generally be complied with. Unless this is done, a concern is that private advantage may be won by an individual that others cannot enjoy. If the proposed development were a standard sized shed that had been built, the advantage to the builder might only be the avoidance of the procedures necessary to gain a development approval that others could generally expect. However, the shed built in this instance is 1.66 times larger than a standard shed. The Tribunal considers that the shed built represents a private advantage over those who might apply for approval and be subject to an assessment of the proposal against the standards of the Council's town planning provisions and policy.
The second consideration is the impact of the contravention of the town planning scheme. This includes consideration of whether the breach is purely technical so that it would be unnoticeable to a person not versed in the relevant planning control. The shed in this instance is clearly noticeable as an oversized building on a lot mostly cleared of vegetation in a similarly cleared landscape. It is a consequential development that has an impact. This would normally support, together with the other considerations in a review of this type, that the s 214 direction should be affirmed.
The applicant, however, made submissions that there were planning grounds in support of her case that the development was consistent with the requirements of TPS 3 and should be allowed to remain. Submissions were also made as to why it was considered there were exceptional circumstances that warranted the floor area standard of the Outbuildings Policy being relaxed. The respondent had a different view of the planning merit of the development.
The planning merit of a development is not the primary question to be asked in respect of a s 214 direction, but, as outlined in the introduction above, the Tribunal formed the view that consideration of the planning merit of the development would be of assistance in disposing of all of the issues. The Tribunal addresses the planning merit of the proposal below in considering DR 67 of 2009, the review of the refusal of the development application. The comment can be made, however, that the development has been found to be inconsistent with the objectives of TPS 3.
The third consideration is the factual circumstances in which the contravention took place.
It is common ground between the parties that:
•the respondent notified the applicant of the right of review of the development refusal before the Tribunal and no review was sought;
•the applicant constructed the shed knowing the development application had been refused.
The applicant had worked for a firm that erected sheds and so had some knowledge of the need for an approval. The explanation provided for the development of the shed included the need to secure certain private vehicles and equipment and the penalties associated with breaking a contract for the purchase of the materials for the shed. The circumstances of the contravention of TPS 3 are not considered by the Tribunal to support setting aside the s 214 direction.
The fourth consideration is the time lapse. The respondent acted when it became aware of the development occurring. The Tribunal is satisfied that the respondent took steps to address the matter in a timely manner once it became aware of the situation.
The final consideration is the expense and inconvenience which would be involved in remedying the contravention. This is a shed and not, for example, an occupied house. The inconvenience would be finding suitable storage for the possessions of the applicant.
The cost to the applicant would include demolition and finding a useful purpose for the materials. In this regard, the Tribunal notes that the respondent's representative said at the hearing that a shed more consistent with the Outbuildings Policy would be given due consideration.
In looking at the evidence presented and the submissions made in respect of the tests set out above, the Tribunal has concluded that the appropriate course is to affirm the s 214 direction. In saying this, the Tribunal also considers that it would be reasonable for the applicant to have sufficient time to, should she wish to do so, apply for development approval for, and erect, a smaller shed. The 60 days for compliance with the s 214 direction running from the date of this decision should be sufficient for a fresh application for planning approval to be assessed by the respondent and determined.

The first issue arising in respect of DR 67 of 2009 - the review of the development refusal pursuant to s 252(1) of the PD Act:

Whether the need for the shed, as demonstrated by the applicant, constitutes exceptional circumstances and therefore warrants relaxation of the floor space standard as provided for in the Outbuildings Policy

A shed can only be an outbuilding if there is an associated house on the same lot. There is no house on the site. The applicant said she planned to build a house and there were early signs of foundation work seen at the viewing. It is implicit in the evidence and submissions of the respondent that it has accepted that the shed on the site will become an outbuilding. The provisions of its Outbuilding Policy have therefore been used as guidance in assessing the shed. The Tribunal has accepted the applicant's assertion that she intends eventually to build a house and has had regard to the submissions of both parties on the use of the Outbuildings Policy as a guide to the acceptability of the shed.
The Outbuildings Policy at cl 7 provides that variations will require the applicant to demonstrate exceptional circumstances. To be exceptional, a circumstance does not need to be unique or very rare but it cannot be one that is regularly or normally encountered. The circumstance needs to be out of the ordinary course, or unusual, or special, or uncommon. In addition, no one factor need be individually exceptional but taken together be seen to be exceptional: Avalon Sheds and Stables and City of Belmont [2009] WASAT 67 at [28] and [29] (citing D and Department for Community Development [2007] WASAT 154 at [19] and [20]).
Mr Caddy, for the applicant, acknowledged the Outbuildings Policy but said that, consistent with planning principles, the policy should only guide the exercise of discretion and not be inflexibly applied. He argued that, as provided for in the policy, exceptional circumstances existed to warrant relaxation of the standard. The circumstances were that the site was zoned 'Special Rural', was large at 11.2 hectares and the applicant had the potential to develop uses, including rural activities, allowed under TPS 3. The applicant had commented that she may wish to run some cattle on the lot. Any agricultural activity would require the housing of equipment in a shed. In addition, it was also necessary that the shed house machinery used for maintaining a lot of this size and this included the tractor, quad bike, and slashers. It was Mr Caddy's view that it was also reasonable that there be accommodated on the site the vehicles needed by the applicant's partner for making a living, and these included a truck, trailer and bobcat. The owners also pursued a vigorous lifestyle which included motorbikes, a caravan, diving equipment and a boat. All of these factors together combined to demonstrate that the standard shed of 180 square metres under the Outbuildings Policy was not sufficient. In these exceptional circumstances the standard should be relaxed and the shed of 300 square metres approved.
Mr Fenn, for the respondent, did not consider that the lifestyle of an individual or circumstances of the applicant constituted exceptional circumstances. There was also currently no rural activity on the site and no evidence of any planned. Only one other shed in the locality was of similar size and that shed had been approved some years ago when the Outbuildings Policy had different requirements. He said that there was a community expectation that the policy requirements for sheds would be met and made reference to Damave and Shire of Dandaragan [2008] WASAT 257 where the Tribunal determined that the desire of an applicant to have more extensive outbuildings than permitted by the policy did not in that case constitute an exceptional circumstance or establish a cogent reason why the planning principles that find expression in the policy should not be applied.
The Tribunal has formed the view that the circumstances of the applicant are not individually or together exceptional. The Outbuildings Policy identifies as a category, special rural lots greater than 2 hectares and allocates a floor area larger than for smaller lots. Other lots of similar size to the site in the SR6 zone would require similar maintenance and have the same potential for rural activity consistent with the zoning. The Tribunal also does not accept that the accumulation of equipment to assist in pursuing a particular lifestyle is an exceptional circumstance that warrants varying the standards of this properly adopted policy.
Under the Outbuildings Policy the expectation is that there would be a balance between various legitimate needs of residents for outbuildings and minimising any adverse impacts outbuildings may have on neighbours, a street, a neighbourhood or a locality. The presence of an outbuilding of similar size, three lots to the south, is not considered by the Tribunal to have weight in light of the evidence that it was approved consistent with the Outbuildings Policy in place in 2001. Even though that outbuilding might from some directions be partially obscured by vegetation, it is visible, particularly from the north, as a large outbuilding. It is certainly not apparent that it would have been allowed as a matter of course had the current Outbuildings Policy been in place.
The respondent has consciously revised its Outbuildings Policy. The current version of the Outbuildings Policy must be seen to have the objective of influencing how the character and amenity of the locality will develop from the date of the adoption of the policy. The presence of the large outbuilding to the south, approved under the previous version of the policy, does not mean that the current Outbuildings Policy has no further work to do. The Tribunal notes this is a policy being used as guidance but, as provided in the policy, exceptional circumstances are required to vary it because it would be a departure from the general intent of the policy. In this instance the Tribunal has concluded that the circumstances are not, individually or collectively, sufficiently exceptional to warrant the policy being relaxed.

The second issue arising in respect of DR 67 of 2009 ‑ the review of the development refusal pursuant to s 252(1) of the PD Act:

Whether the shed as built is consistent with the objectives of the zone and the matters required to be considered under TPS 3.

Mr Caddy also advanced arguments that the shed would be consistent with the orderly and proper planning and the preservation of the amenity of the locality. This was because the shed was in a special rural zone with lots similar in area to the site. Other lots included sheds, one being the outbuilding three lots away of a similar size. In his submission, the shed would not be out of character in the locality because of its colour, materials and setback. The appearance would be further softened when the trees already planted around the perimeter of the site grew and by any future planting that would be required.
The Tribunal was taken to a site in Little Grove where there was a large outbuilding behind a house. This is not considered to assist the applicant. Unlike the shed on the site, that outbuilding was only visible from a restricted number of vantage points and was in a suburban situation.
Mr Caddy, referring to a sketch provided by the applicant, which showed a house on the site connected to the shed by a roofed area, commented that the prominence of the shed would be further reduced because, in his submission, the profile of what would then become an outbuilding would be integrated with the house.
Mr Fenn said it was just not a matter of compliance with colour, materials and setbacks. He made reference to Stockdale and Shire of Mundaring [2006] WASAT 356 where there was consideration that the storage of implements within a shed rather than scattered about the property might improve amenity. It was determined that the shed itself affected amenity and therefore its approval would not be consistent with orderly and proper planning.
Mr Humphrey, the planner called by the respondent, was of the opinion that, because of the light construction of the connection between the buildings, the shed would not be sufficiently integrated with the proposed house to have the total development appear as a single structure.
The Tribunal accepts that sheds will be visible in this landscape, but the shed on the site is considerably larger than the size of outbuildings considered acceptable by the Council when formulating its Outbuildings Policy. The matters for consideration under TPS 3 include impact on amenity and the effect of the bulk and scale of a development. The Tribunal has concluded that because of its size, the generally cleared nature of the locality and the clear views of the site from most directions, the shed is inconsistent with the emphasis in the objective of the SR6 zone that development merge with the landscape. The vegetation planted on the perimeter of the site will grow, but as is apparent with the large outbuilding to the south which has nearby vegetation, the size of the shed is likely to remain a significant feature in the locality.
The Tribunal, after consideration of the evidence and submissions of the parties and the viewing of the site and locality, has formed the view that the refusal of the respondent is to be affirmed and the development is not to be granted retrospective planning approval.

The issues arising in respect CC 1019 of 2008:

Whether the serving of notice under s 401(1)(c) of the LGMP Act requiring the shed to be pulled down and the restoration of the site is a suitable response.

It was common ground between the parties that:
•section 374(1) of the LGMP Act required the applicant to obtain a building licence prior to building the shed;
•the applicant was aware of the need to obtain a building licence;
•no application for a building licence was lodged with the City;
•the value of the shed would require the application for a building licence to be withheld until a registered builder under the Builders' Registration Act 1939 (WA) was nominated to receive the building licence;
•the applicant had the shed constructed without a building licence being obtained;
•the shed was constructed by a tradesman (a carpenter) who is not a registered builder;
•no inspection of the shed was undertaken during erection by a qualified building surveyor or a registered builder; and
•verifying the structural adequacy or inadequacy of the shed can now only be based on external visual observations.
The applicant filed a plan (Exhibit 12) which showed a shed design endorsed 'T Beirne, Chartered Structural Engineer, 12/5/08'. It was submitted that the shed was constructed according to these plans.
In normal circumstances, if it were found appropriate that the shed remain as constructed, it would be open to the Tribunal to make a decision not to issue the s 401 notice and the notice would be withdrawn. In this situation, the applicant would be required to apply to the City for the issue of a building approval certificate in respect of the unauthorised work pursuant to s 374AA(2) of the LGMP Act. The applicant said she would accompany an application with the required original signed letter from a practising structural engineer stating that the unapproved shed has been inspected and is structurally adequate.
The shed, however, also requires development approval under TPS 3 and the Tribunal has concluded that development approval is not to be granted. The Tribunal has further found that it would not be appropriate to set aside the s 214 direction requiring the removal of the shed for contravention of TPS 3.
In the particular circumstances that apply in this case, the Tribunal has determined that the s 401 notice shall be affirmed.

Summary and conclusion

There has been built on this SR6 site a 300 square metre shed used for the storage of equipment and vehicles used by the owners for recreation, work and the maintenance of the site. The development occurred without the applicant obtaining either development approval under TPS 3 or a building licence under the LGMP Act.
The Tribunal had before it three matters. One matter, DR 244 of 2008, was a review of a s 214 direction under the PD Act for non‑compliance with TPS 3, which required that the applicant pull down the unauthorised building and restore the land to the condition immediately before the unauthorised building was erected. The Tribunal concluded that because of the need to ensure no advantage is gained by not complying with the law, the circumstances of the contravention and the undesirable impact on the locality of the contravention, the s 214 direction should be affirmed.

The next matter was DR 67 of 2009, which concerned the consideration of the planning merit of the shed and whether it should be granted retrospective development approval. There were two issues arising. The first was whether there existed exceptional circumstances that would warrant a relaxation of the 180 square metre standard for outbuildings on special rural lots greater than 2 hectares. The Tribunal found that the circumstances were not unusual, uncommon and special or out of the ordinary course and therefore were not exceptional. It concluded that there was no basis for relaxing the floor area of the shed on this basis.
The second planning consideration was whether the 300 square metre shed would be consistent with the provisions of TPS 3. The Tribunal accepted that sheds will be visible in this landscape, but the shed on the site will be considerably larger than the standard adopted for outbuildings in special rural zones. The Tribunal has concluded that because of its size, the shed would have a bulk and scale visible from most directions in this generally cleared landscape and this would have an obvious impact on the local amenity inconsistent with the objective of the SR6 zone. In respect of the application for planning consent, the Tribunal affirmed the respondent's refusal.
The respondent did not determine that a shed as used was inconsistent with the purpose of the zone, but objected to its size. The respondent has advised that a shed more consistent with its Outbuildings Policy would be considered. The Tribunal notes that there should be sufficient time to have an application for a different sized shed determined before it is necessary to comply with the s 214 notice.
The third matter was CC 1019 of 2008, which was a review of a notice issued pursuant to s 401 of the LGMP Act, which required the building constructed without a building licence to be pulled down. The Tribunal found that, as a consequence of the conclusions reached in respect of the planning refusal and the s 214 direction, it was appropriate to affirm the s 401 notice issued pursuant to the LGMP Act.
The Tribunal has determined that the applications for review in respect of all three matters are to be dismissed.

Orders

The Tribunal makes the following orders:
1.In the matter of DR 67 of 2009:
i)the application for review is dismissed.
ii)the decision of the City of Albany on 31 January 2008 to refuse to grant approval for the development of a shed at Lot 9001 Henty Road, Kalgan is affirmed.
2.In the matter of DR 244 of 2008:
i)the application for review is dismissed.
ii)the decision of the City of Albany, dated 18 July 2008, to give direction to the applicant, pursuant to s 214(3) of the Planning and Development Act 2005 (WA) requiring the applicant to pull down the shed developed on Lot 9001 Henty Road, Kalgan, is affirmed.
3.In the matter of CC 1019 of 2008:
i)the application for review is dismissed.
ii)the decision of the City of Albany, dated 29 July 2008, to give notice to the applicant, pursuant to s 401(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA), to pull down the building on Lot 9001 Henty Road, Kalgan is affirmed.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER