WILKES and TOWN OF CAMBRIDGE
[2005] WASAT 34
•17 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: WILKES and TOWN OF CAMBRIDGE [2005] WASAT 34
MEMBER: MS B MOHARICH (MEMBER)
HEARD: 25 FEBRUARY 2005
DELIVERED : 17 MARCH 2005
FILE NO/S: RD 288 of 2004
BETWEEN: IAN WILKES
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town Planning - Application for retrospective approval - Outbuilding - Paving - Compliance with policy
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Applicant: Self Represented
Respondent: Self Represented
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Dalla Riva (Australia) Pty Ltd v Town of Cambridge [2004] WATPAT 4
Case(s) also cited:
Nil
MS B MOHARICH (MEMBER)
REASONS FOR DECISION
This is an appeal for retrospective planning approval for a storage shed and landscaping at 63 (Lot 588) Oceanic Drive Floreat.
Lot 588 is located on the southern side of Oceanic Drive, and is one lot east from the corner of Alderbury Street. Lot 588 slopes approximately 1 metre from Oceanic Drive to the rear of the lot, and approximately 1.5 metres from east to the west.
To the west of Alderbury Street on the southern side of Oceanic Drive is the Alderbury Street Reserve, a large park which is adjacent to Bold Park. To the north east of the lot is the Floreat Oval.
The lot is zoned Residential under the Town of Cambridge Town Planning Scheme No.1 ("TPS1"), and is coded R12.5. The land is located in the Floreat West Sub‑Precinct of the Floreat Precinct, as defined in the Residential Design Guidelines ("RDG") which are a policy adopted pursuant to cl 48 of TPS1.
Clause 34 of TPS1 gives power to the Council, and therefore the Tribunal, to grant retrospective planning approval, notwithstanding the fact the development has already been carried out.
Background
The appellant commenced development of Lot 588 on the basis that planning approval was not required for landscaping and store areas.
The respondent notified the appellant that planning approval was necessary, and so an application was lodged with the respondent on 27 July 2004. This application was for the as‑built metal clad storage shed, and for the paving of an area of the front yard of Lot 588. This application was refused by the Council of the respondent at its meeting on 24 August 2004.
As a result of this refusal, the appellant lodged an amended application, this time for a store clad with fibre cement renderline sheeting, finished with render and painted to match the existing residence. In addition, the area of hard paving in the front yard of the lot had been reduced. At its meeting on 28 September 2004, the Council again refused the application, giving the following reasons:
(i)non-compliance with the paving in front setback provisions of the Town's Residential Design Guidelines (Clause 5.9.1); and
(ii)non-compliance with side setback provisions of the R Codes (Clause 3.10.1)"
It is this decision which gave rise to this appeal.
Paving
The respondent maintained that the landscaping of a residential lot required planning approval, as it was not exempt development as defined by cl 33 of TPS1. The definition of "development" in TPS1 refers back to the definition in s 2 of the Town Planning and Development Act 1928, (WA) which is a broad definition. It is usually the case, however, that a local government takes a policy view that landscaping of residential lots does not require planning approval.
Clause 5.9.1 of the RDG provides:
"A maximum of 40% of the primary setback area may be developed with hard, impermeable paving."
Mr Bracone, a town planner employed by the respondent gave evidence on its behalf. It should be noted at the outset that Mr Bracone had been involved in the assessment of both applications, and the writing of the reports to Council, both of which recommended approval. Mr Bracone explained that he was providing evidence on the way in which the Council interpreted its TPS and policies, but ultimately, agreed with the recommendation put to Council. Mr Bracone's difficult position is evident from his witness statement, which, while providing a useful overview of the background of this matter and the relevant statutory and policy provisions, does not provide any opinion or justification for the way in which the respondent council exercised its discretion.
Mr Bracone noted that while the RDG imposed a limit of 40 per cent of paving in the front setback, the appellant proposed to provide 48.5 per cent, 8.5 per cent more than allowed "as of right" under the policy. The calculation of the 48.5 per cent is questionable to say the least. The reports to Council for both the original and amended application state that the paving covered an area of 48.5 per cent. As discussed previously, it is clear from the amended plans lodged in relation to the latter application that the area of paving had been reduced. Neither party was able to provide an accurate calculation of the paved area in the second application, although it is clear that it is now less than the original 48.5 per cent.
The appellant relied upon the performance criteria in cl 5.10, which provided a variation on the 40 per cent maximum where:
"(a)the street setback area developed and planted to present a substantially 'green' appearance, allowing views to the dwellings; and
(b)development which minimizes impact on the natural topography of the locality and conserves significant landscape elements, including indigenous trees."
The appellant provided photos of the streetscape. The landscaping which has been undertaken is of a high quality, and formal in design, with raised garden beds, and shaped hedges, which do not impede views to the dwelling on the property. As the garden establishes itself, there is no doubt it will create a "substantially green appearance" without impeding views to the dwelling, and therefore it satisfied criteria (a). No earthworks have been undertaken to change the site levels, and no indigenous trees have been removed. The proposal therefore satisfies criteria (b).
It is the Tribunal's view, therefore that the appeal, in relation to the paving, be allowed.
Outbuilding
The storage shed is located on the western boundary of the property, with a setback in line with the front veranda of the house on the property. The appellant intends to use the shed to store fishing and boating equipment.
Mr Wilkes explained that he located the shed in this position for ease of access from the adjacent boat parking area. Because of the irregular shape of the lot, which is wider at the street than it is at the rear, Mr Wilkes explained that this was the only position that a shed would fit along a side boundary.
The outbuilding has a height of 2.4 metres, a length of 4.8 metres and a width of 3.0 metres at the end closest to the street, and tapering back to a width of 2.2 metres at the rear, and has an area of 11.4 metre square. Because of the sloping nature of the lot, the shed has a finished floor level of 1.2 metres below that of the house, and approximately 0.5 metre from Oceanic Drive.
The acceptable development standards in Element 10 of the Residential Design Codes ("the Codes"), provides that an outbuilding must, among other things, comply with the set backs in Element 3. As noted previously, it is for this reason alone that the shed was refused. However, there is no indication that the respondent assessed the shed against the performance criteria in Element 3.
In any event the Respondent has failed to determine whether first the shed complies with the performance criteria in Element 10. As has been noted on many occasions by the Town Planning Appeal Tribunal, the Codes should be read first by looking at the objectives of the element, and then at the performance criteria:
"19.Acceptable development represents examples which of themselves are deemed to meet the relevant performance criteria.
20.It is wrong therefore to start with some of the examples as the measure in itself as to whether a particular application is in accordance with the Codes." Dalla Riva (Australia) Pty Ltd v Town of Cambridge [2004] WATPAT 4.
Performance Criteria 3.10.1 provides:
"Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties."
The neighbour on the western boundary does not object to the shed, which is located adjacent to their car parking area. The shed is only partially visible from the street because of the fall across the lot, and once rendered and colour matched with the dwelling, will not detract from the streetscape. As the finished floor level ("FFL") is 1.2 metres below the FFL of the house on Lot 558, the shed will not detract from the visual amenity of residents of the house, because it will not block views from existing windows.
For the foregoing reasons, the Tribunal makes the following orders:
1.The appeal be allowed.
2.The landscaping is approved in accordance with the plan lodged with the second application on 2 September 2004,
3.The shed is approved in accordance with the plan lodged with the second application on 2 September 2004, and is to be clad with fibre cement sheeting, rendered and painted to match the existing residence.
I certify that this and the preceding six pages comprise the reasons for decision of the State Administrative Tribunal.
________________________
Ms B Moharich
Member
0
1