Williamson and City Of Rockingham
[2006] WASAT 330
•14 NOVEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WILLIAMSON and CITY OF ROCKINGHAM [2006] WASAT 330
MEMBER: MS M CONNOR (MEMBER)
HEARD: 1 NOVEMBER 2006
DELIVERED : 14 NOVEMBER 2006
FILE NO/S: DR 136 of 2006
BETWEEN: BRIAN WILLIAMSON
Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Town planning - Development - Open air display centre and associated car parking - Kit homes, carports and garaport - Compatibility of proposed development with its setting - Relationship of proposed development with other land in the locality - Preservation of amenity - Orderly and proper planning
Legislation:
City of Rockingham Town Planning Scheme No 1
City of Rockingham Town Planning Scheme No 2, cl 1.6.1(a), cl 1.6.1(b), cl 1.6.2(a), cl 1.6.2(b), cl 1.6.2(c), cl 1.6.2(h), cl 3.4, cl 3.4.1, cl 3.4.2, cl 4.9, cl 4.15, cl 4.15.2, cl 6.6, cl 6.6(a), cl 6.6(b), cl 6.6(i), cl 6.6(o), cl 6.6(p), cl 6.7, cl 8.9, cl 8.9.3, cl 8.9.7, Sch 1, Sch 3
Planning and Development Act 2005 (WA)
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr M Rennie
Respondent: Mr PD Quinlan
Solicitors:
Applicant: HFM Legal
Respondent: Watts Woodhouse
Case(s) referred to in decision(s):
Angew Clough Ltd v Town Planning Board (Unreported; Appeal No 1 of 1979; 1 May 1980)
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Tang v City of Stirling (Unreported; Appeal No 27 of 1981; 12 March 1982)
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Williamson applied to the State Administrative Tribunal for review of the decision of the City of Rockingham, refusing planning consent for an open air display centre and associated car parking on Lot 501 Fielden Way, Port Kennedy. The open air display centre involved the construction, display and sale of "kit homes", carports and garaport.
The principal issues identified were:
1.Whether the proposed development was consistent with the objectives and provisions of the Scheme, with particular reference to cl 1.6.1(a) and (b); cl 1.6.2(a), (b), (c) and (h); cl 3.4; cl 4.9; cl 4.15; cl 6.6 (a), (i), (o) and (p) of the City of Rockingham Town Planning Scheme No 2.
2.Whether the proposed development was compatible with its setting.
3.Whether the height, bulk, scale, orientation and appearance of the proposed development would adversely affect other land in the locality and therefore have a detrimental impact on the preservation of the amenity of the land and on the orderly and proper planning of the locality.
The Tribunal found that the proposed development was not compatible with its setting but rather visually imposing and unsympathetic with its surrounds. Further, the Tribunal was of the view that the height, bulk and scale of the proposed development would adversely affect the amenity of other land in the area and was not consistent with orderly and proper planning of the locality. The application for review was dismissed and development approval refused.
Introduction
Mr Brian Williamson (applicant) made application to the City of Rockingham (respondent) for approval for an open air display centre and associated car parking on Lot 501 Fielden Way, Port Kennedy (subject land).
The application involved the display of the following structures:
•kit display home ‑ 10.8 metres long x 7.8 metres wide x 5.2 metres high (at apex of roof) fitted with a toilet;
•"Beachcomber" kit home – 13 metres long x 6 metres wide x 5.8 metres high (at apex of roof);
•"Quaker Barn" kit home – 7 metres long x 7 metres wide x approximately 6 metres high (at apex of roof);
•two carports – 6 metres long x 6 metres wide x 2.98 metres high (at apex of roof); and
•a garaport – 12 metres long x 6 metres wide x 3.9 metres high (at apex of roof).
The development application was refused by the respondent at its ordinary meeting of 28 March 2006 for the following reason:
"(i)The size and scale of the structures proposed to be displayed on the site is considered to be inconsistent with the 'Open Air Display' Special Use over the site which is intended to provide for a low intensity outdoor display development which does not have a detrimental impact on the exposure of the surrounding businesses to Warnbro Sound Avenue."
The applicant, on 21 April 2006, made application to the State Administrative Tribunal to have the decision reviewed.
The respondent raised a preliminary issue as to whether the respondent (and, accordingly, the Tribunal) has power to approve the proposed use under the City of Rockingham Town Planning Scheme No 2 (TPS 2 or Scheme), given that it would involve the construction, display and sale of "kit homes".
Submissions on the preliminary issue were heard on 7 September 2006 and an oral decision was made declaring "that the Tribunal has power under the City of Rockingham Town Planning Scheme No 2 to grant approval to the proposed development".
A statement of "Agreed Facts" was filed by the parties and reads as follows:
"1.The applicant's proposal is described by the applicant as being use [sic] for an 'Open Air Centre'. What is proposed is a Shed Co 'shed, kit home and patio display centre' on Lot 501 Fielden Way, Port Kennedy '(the Land)'.
2.The applicant's proposal would involve the construction of:
(a)a kit display home;
(b)a beachcomber display home;
(c)two carports;
(d)a Garaport and a Quaker Barn;
on the Land, for display purposes only, as depicted in the plans submitted as part of the application (Respondent's Bundle, pages 3-18).
3.The buildings to be displayed would be constructed of Colorbond walls and roofing on concrete flooring.
4.One of the kit homes is intended to contain a functioning bathroom, although the applicant is prepared to replace that proposal with a small ablution block.
5.The Land is a Special Use Zone in accordance with clause 3.4 of the Scheme. Clause 3.4 provides, in clause 3.4.2 that:
'A person shall not use any land, or any building or structure on land in a Special Use Zone, except for the purpose set out against that land in Schedule No. 3 …'
6.Schedule No. 3 prescribes the permitted use for Lot 501 as being 'Open Air Display'.
7.'Open Air Display' is defined in the Scheme to mean:
'the use of land as a site for the open air display and/or sale and hire of goods and equipment.'"
Site context
The Tribunal was assisted by a view of the subject land and surrounding locality on the morning of the hearing.
The subject land is located at the north‑west corner of the Port Kennedy Business Park (Business Park) and has no adjoining lots as it is entirely surrounded by roads, being Warnbro Sound Avenue, Fielden Way and Bakewell Drive. The lot is irregular in shape and is 1056 square metres in area. The land is currently vacant.
The localities to the west and the north‑east of the subject land are predominantly residential in use, and are zoned accordingly. The locality to the south‑east is the Business Park, which is zoned "Port Kennedy Business Enterprise" under TPS 2.
Warnbro Sound Avenue is a north‑south distributor route (dual carriageway with medium strips) linking to the Rockingham town centre.
Planning framework
The subject land is zoned "Special Use" under TPS 2. Clause 3.4.1 of TPS 2 specifies that "Special Use" zones are set out in Schedule 3 to the Scheme and are in addition to the zones in the Zoning Table.
Clause 3.4.2 of TPS 2 provides that:
"A person shall not use any land, or any building or structure on land in a Special Use Zone, except for the purpose set out against that land in Schedule No 3 … "
Schedule 3 prescribes that permitted use for the subject land as being "Open Air Display", specifying no special conditions.
"Open Air Display" is defined under Schedule No 1 – Interpretations of TPS 2 as meaning:
"… the use of and as a site for the open air display and/or sale and hire of goods and equipment."
It was determined at the hearing of the preliminary issue that the proposed development fell within the definition of "Open Air Display".
The Scheme does not generally provide any development standards or requirements specific to the Special Use Zones, except for car parking where the Council is required to determine the number of car parking bays having regard to a number of matters (cl 4.15.2).
Clause 6.7 of TPS 2 provides the authority for the Council to refuse or approve an application with or without conditions. Further, cl 6.6 sets out the matters that the Council is to have due regard to considering an application for planning approval. The particular subclauses relevant to this matter are as follows:
•the objectives and provisions of the Scheme (subclause (a));
•the requirement of orderly and proper planning (subclause (b));
•the compatibility of a use or development with its setting (subclause (i));
•the preservation of the amenity of the locality (subclause (o)); and
•the relationship of the proposal to development on the adjoining and 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 (subclause (p)).
Clause 8.9 of TPS 2 empowers the Council to make planning policies in respect of any matter relating to planning and development of the Scheme area so as to apply generally or for a particular class or classes of matters and throughout the Scheme area or in one or more parts of the Scheme area. The respondent adopted Planning Policy No 6.13 – Open Air Display (Planning Policy No 6.13) at its ordinary meeting 24 October 2006. Publication of a notice is required before the policy has effect (cl 8.9.7).
Issues
The parties agreed that the following three issues required consideration in the review:
1.Whether the proposed development is consistent with the objectives and provisions of the Scheme, with particular reference to cl 1.6.1(a) and (b); cl 1.6.2(a), (b), (c) and (h); cl 3.4; cl 4.9; cl 4.15; cl 6.6 (a), (i), (o) and (p) of TPS 2.
2.Whether the proposed development is compatible with its setting.
3.Whether the height, bulk, scale, orientation and appearance of the proposed development will adversely affect other land in the locality and therefore have a detrimental impact on the preservation of the amenity of the land and on the orderly and proper planning of the locality.
The Tribunal also enquired as to whether the adopted Planning Policy No 6.13 should be included as an issue in the determination of this matter. Counsel for the respondent informed the Tribunal that although the policy had been adopted by the respondent, it was not a formal policy at this stage as it had not, as yet, been published in accordance with cl 8.9.7 of TPS 2. Mr Underwood, planning officer of the City of Rockingham, informed the Tribunal that this step had not been undertaken due to timing logistics, but expected a notice to be published in the paper by the following week. According to Mr Quinlan, the respondent did not seek special status of the policy.
It was the applicant's contention that the policy had been formulated and adopted to target the proposed development and stymie this review. The applicant drew the Tribunal's attention to clauses 8.9.3 and 8.9.7 of TPS 2.
The Tribunal finds that the policy has progressed considerably in terms of the procedures set out in cl 8.9 and there is no question that the policy falls within the concept of a "seriously entertained proposal". In light of previous decisions by the Town Planning Appeal Tribunal and the Supreme Court, the Tribunal finds that the adopted policy should be regarded as a relevant town planning factor in the determination of this matter Angew Clough Ltd v Town Planning Board (Unreported; Appeal No 1 of 1979; 1 May 1980); Tang v City of Stirling (Unreported; Appeal No 27 of 1981; 12 March 1982); Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433. As observed by counsel for the applicant, cl 8.9.3 of TPS 2 provides that a planning policy is not part of the Scheme and does not bind the decision‑maker. This provision, together with the fact that the Council in adopting the policy was of the belief that "the Council's adoption of the new Planning Policy [would] not affect SAT's review of the Council's refusal" will be taken into consideration in determining the weight to be accorded to the policy in the determination of this matter.
Each of the three issues agreed by the parties will be addressed in turn.
Whether the proposed development is consistent with the objectives and provisions of the Scheme, with particular reference to cl 1.6.1(a) and cl 1.6.1(b); cl 1.6.2(a), cl 1.6.2(b), cl 1.6.2(c) and cl 1.6.2(h); cl 3.4; cl 4.9; cl 4.15; cl 6.6(a), cl 6.6(i), cl 6.6(o) and cl 6.6(p) of TPS 2
The parties identified the relevant clauses within the Scheme pertinent to this application. The identified objectives set out the guiding principles of the Scheme, while clauses 3.4 and 4.15 set out development controls specifically related to the subject application. Clause 3.4 relates to the use of the subject land for "Open Air Display", which the Tribunal has previously found that the proposed development fell within that definition. Clause 4.15 deals with the provision of car parking spaces on site and is only relevant, in this instance, if approval is to be given to the proposed development. Clause 4.9 provides the general development requirements for the Port Kennedy Business Enterprise Zone, which the Tribunal should be mindful of when considering the impacts of the proposed development on other land in the locality.
The core provisions of the Scheme that will determine whether the proposed development is consistent with the objectives and provisions of the Scheme are listed under cl 6.6(i), cl 6.6(o) and cl 6.6(p). These matters are addressed below as separate issues.
Whether the proposed development is compatible with its setting
The respondent asserted that the subject land and the immediate surrounds formed the northern gateway to the Port Kennedy Business Park. More specifically, the subject land provided delineation between the residential land to the north and the Business Park to the south‑east. The respondent argued that development of the subject land should be both suitable to the nature of the surrounding uses and yet complementary to the overall Business Park development. Evidence was led by the respondent to show that the intended use of the subject land had been to attract low intensity uses that structured their display component around a garden setting to ensure that the development did not detract from the Business Park. These objectives had been incorporated in the Scheme Amendment report that proposed the rezoning of the land from "Parks and Recreation" to "Development" zone – Exclusive Use "Open Air Display" under the then City of Rockingham Town Planning Scheme No 1 in 1992 and in turn, included in TPS 2 as "Special Use" zone – "Open Air Display" (gazetted November 2004). The respondent also contended that it had maintained a consistent planning approach and had applied these principles in the deliberation of subsequent development applications.
The respondent asserted that the proposed development was not consistent with the "Open Air Display" centre envisaged for this site, as the scale and intensity of the proposed buildings on site, particularly at the northern end, would have a detrimental impact on exposure of the surrounding businesses to Warnbro Sound Avenue and would be visually intrusive, detracting from the northern entrance to the Business Park.
The applicant argued that the subject land is small compared to the Business Park and conceded that the proposed development would create some obstruction to businesses located in the vicinity of the subject land. The applicant asserted that the view most likely to be affected by the proposed development would be from vehicles travelling along Warnbro Sound Avenue in a southerly direction. The respondent agreed with this contention. The applicant argued that the impact on exposure to the Business Park and the respective businesses would be minimal as an existing wall that surrounds the residential area to the north already impinges on the view exposure of the Business Park. The applicant asserted that existing limited exposure of the Business Park was confirmed by the need for some of the existing businesses to place "A" framed advertising signs on the subject land to heighten their exposure.
Both parties produced photographs to provide context of the subject land with its surrounds. The Tribunal was also assisted by the view. The subject land is a unique location that presents as the focal point to the northern end of the Business Park. The development of the subject land has potentially significant consequences on the visual interface of the northern end of the Business Park, which were recognised by the respondent, but not adequately expressed in the town planning scheme. The visual relationship between the development on the subject land with the Business Park is fundamental to the success of retaining the northern gateway to the Business Park. This was clearly evidence on the view.
The existing wall surrounding the residential area to the north does obscure some visibility to the Business Park, however, the proposed development will further obscure this view. The scale, form and intensity of the proposed "Open Air Display" will visually dominate, detracting from the visual relationship between the northern portion of the Business Park with Warnbro Sound Avenue. The Tribunal does not consider the proposed development to be compatible with its setting but rather visually imposing and unsympathetic with its surrounds.
Whether the height, bulk, scale, orientation and appearance of the proposed development will adversely affect other land in the locality and therefore have a detrimental impact on the preservation of the amenity of the land and on the orderly and proper planning of the locality
Mr Underwood, in his witness statement, detailed the history of planning decisions made by the respondent in relation to the subject land leading up to the institution of this review. The purpose of which was to establish that the respondent, since the initiation of the amendment to rezone the subject land to permit "Open Air Display", has had a consistent planning vision for the orderly and proper planning of this locality. Now formalised by the adoption of Planning Policy No 6.13.
The respondent contended that the bulk, scale and intensity of the proposed development, particularly the cluster of larger buildings located on the northern end of the subject land, would be visually intrusive and inconsistent with the original planning intentions for the subject land and locality. The respondent asserted that the proposed development would adversely affect other land in the locality, being the adjacent land in the Business Park, as the conglomeration of buildings on the subject land would block the open view of Fielden Way and impede exposure to that part of the Business Park, particularly from the residential catchment area to the north.
The applicant contended that the proposed development had an attractive appearance and referred the Tribunal to the pictorial representations of the proposed buildings, as well as photographs of the relevant displays at the Shed Co Centre at Greenwood, to demonstrate the nature of the proposed development. The applicant considered the appearance of the proposed development more attractive than some of the other developments in the Business Park. The applicant further argued that the intensity of the development was relatively small in comparison, as the site coverage of the proposed development equated to approximately a third of the total lot area (355.24 square metres). The loss of exposure to the Business Park due to the nature of the development was considered to be minimal in the context of the surroundings.
The Tribunal does not agree with the applicant's assessment of the impacts of the proposed development on other land in the locality. The proposal involves the erection of several substantial structures on a relatively small lot. The mass of buildings on the northern end of the subject land will result in the loss of visual connectivity between the Business Park and Warnbro Sound Avenue and the open vista currently being enjoyed by the existing businesses will be obscured. The whole Business Park has been planned and designed so that there are uninterrupted views of the businesses from Warnbro Sound Avenue. The proposed development is contrary to this planning outcome and does not accord with the planning intent embodied in the adopted Planning Policy No 6.13. The height, bulk and scale of the proposed development will adversely affect the amenity of other land in the area and is not consistent with orderly and proper planning of the locality.
Conclusion
In considering the matters that are required to be addressed pursuant to cl 6.6 of TPS 2 in the determination of an application, the Tribunal finds that the proposed development is not compatible with its setting and that the height, bulk and scale of the proposed development will adversely affect the amenity of other land in the area and is not consistent with orderly and proper planning of the locality.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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