WILLIS and SHIRE OF DARDANUP - [2009] WASAT 213

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WILLIS and SHIRE OF DARDANUP [2009] WASAT 213

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 11 SEPTEMBER 2009

DELIVERED : 29 OCTOBER 2009

FILE NO/S: DR 210 of 2009

BETWEEN: FRANK WILLIS
JUDITH WILLIS
Applicants
AND
SHIRE OF DARDANUP
Respondent

Catchwords:

Town planning - Development application - Shire of Dardanup Town Planning Scheme No 3 - Small Holding Zone - Additional requirements for the Small Holding Zone in Appendix VIII - Transportable dwelling - Single dwelling - Landscape protection area - Minimum floor area - Advisory panel - Design and appearance of buildings - Design merit - Architect - Whether the design and materials of the proposed dwelling comply with the provisions of Shire of Dardanup Town Planning Scheme No 3 - External walls constructed of brick or stone unless the design and materials of the proposed dwellings are of a sufficiently high standard to complement and blend in with the natural and surrounding environment

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Shire of Dardanup Town Planning Scheme No 3, cl 3.14, cl 3.14.1, cl 3.14.2, cl 5.2, cl 5.2.2, cl 5.2.3(c), cl 7.1.1, cl 7.4.1, cl 7.4.2, cl 7.11, Appendix I, Appendix VIII

Result:

Application for review is allowed
The decision of the respondent is set aside

Category: B

Representation:

Counsel:

Applicants: Mr N Nylund (Representative)
Respondent: Mr R Quinn (Representative)

Solicitors:

Applicants: Nordic Homes
Respondent: Shire of Dardanup

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application for a new dwelling at No 15 (Lot 113) Nyleeta Close, Ferguson.
The proposal was for a 100 square metre architecturally designed transportable dwelling with an additional area of roofed external timber decking.
The issue was whether the design and materials of the proposed dwelling complied with the provisions of Shire of Dardanup Town Planning Scheme No 3.
The Tribunal found that the relatively small size of the proposed dwelling had no relevance because it met the minimum size requirements of the Shire of Dardanup Town Planning Scheme No 3 set out in Appendix VIII 'Additional Requirements - Small Holding Zones'. The Tribunal also determined that the extensive use of natural materials was of a sufficiently high standard to complement and blend in with the natural environment. Finally, the Tribunal determined that the overall design standard of the dwelling was of a sufficiently high standard to complement and blend in with the surrounding built environment.
The application for review was allowed. The respondent's decision was set aside and the proposed dwelling was approved.

Introduction

These proceedings involve an application brought by Mr Frank Willis and Mrs Judith Willis (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of a decision of the Shire of Dardanup (Shire, Council or respondent) made on 29 April 2009 to refuse development approval for a new dwelling at No 15 (Lot 113) Nyleeta Close, Ferguson (site).
The applicants first made an application for a dwelling on this site on 9 January 2009. The planning officer recommended refusal and the Shire refused that application on 28 January 2009 for the following reason:
THAT Council advise FR & J Willis and Nordic Homes that it does not approve the application … to construct a single dwelling at Lot 113 Nyleeta Close, Ferguson as per the application received 9 January 2009 as it does not comply with Shire of Dardanup [t]own Planning Scheme No 3, Appendix VIII, 'Additional Requirements - Smallholding Zones' with regard to clause F - minimum floor area.
Clause (f) of Appendix VIII of the Shire of Dardanup Town Planning Scheme No 3 (TPS 3 or Scheme) requires a minimum floor area of 100 square metres. The proposal had a floor area of 76 square metres.
The applicants modified the proposal by increasing the floor area to 100 squares metres. The modified proposal was submitted for approval on 3 April 2009. Once again the planning officer recommended refusal. The modified proposal (subject of the application for review) was refused by the Shire because of noncompliance with Appendix VIII 'Additional Requirements - Small Holding Zones' (Appendix VIII) of TPS 3; but without any reference to specific areas of noncompliance.

Site and locality

The site has a roughly rectangular shape with a street frontage of over 250 metres to Nyleeta Close and a secondary street frontage of approximately 137 metres to Greenwood Heights and an area of 3.5 hectares.
The site has a gradient of approximately 1:6 (16.5%). The high point of the site is near the street corner (northeast) and falls to the southwest.
There is an existing Colorbond shed contained within the defined building envelope near the street corner. The proposal is to locate the new dwelling within the defined building envelope at an angle to both streets. The closest point of the dwelling to Nyleeta Close is proposed as 21 metres, which at that point will be set back approximately 54 metres from Greenwood Heights.
The site is located in a locality generally described as the Ferguson Valley. It is a picturesque region and this site has unrestricted views over a valley to the west.
Extensive evidence was submitted concerning nearby properties and relevant descriptions of those properties will be provided later in these reasons.
The Tribunal had the benefit of a viewing of the site and locality in the company of the parties.

Planning framework

The site is zoned 'Small Holding' under TPS 3. The 'Zoning Table' is contained at Appendix I to the Scheme, and a single house is described as a 'P' use in the 'Small Holding Zone'. A 'P' use is a permitted use subject to compliance with development standards. The requirements for this zone are described in cl 3.14 of TPS 3. The required provisions are described in cl 3.14.1.
Clause 3.14.2 provides for additional requirements and modified requirements as described in Appendix VIII of the Scheme for the various areas of the 'Small Holding Zone'. The site falls within Area 12 - Greenwood Heights (Area 12) of Appendix VIII (all future references in these reasons to Appendix VIII refer specifically to the requirements for Area 12). The requirements for Area 12 were gazetted by amendment to the Scheme on 15 June 2004.
A detailed description of the requirements for cl 3.14.1 and Area 12 will follow later in these reasons.
Clause 7.1.1 requires planning consent for any development of land. Exemption from planning approval is described in cl 7.11 where the only permitted exemption is a home office.
Clause 7.4.1 provides that:
The Council may from time to time appoint Advisory Panels to advise the Council on matters as they arise relating to buildings, to the general appearance of buildings, to the design and appearance of buildings in relation to the amenity of the area, and on any other matters as may be referred to an Advisory Panel by the Council.
Clause 7.4.2 requires:
Each Panel shall consist of The President … and at least three other persons, one of whom shall if practicable be an architect or a town planner, who in the opinion of Council has the knowledge and experience to give a proper decision on the matters to be considered by the panel. None of the other persons appointed shall be a Councillor or an officer of the Council.
The site is located within a 'Landscape Protection Area' where the planning requirements for these areas are described in cl 5.2 of the Scheme. Specifically cl 5.2.2 requires planning consent from Council for any development in the Landscape Protection Area. Relevant provisions of cl 5.2 are described later in these reasons.
However, at this stage it is appropriate to dispose of a potential issue. Clause 5.2.3(c) requires that:
Buildings should be set back at least one hundred metres from public roads except where the natural vegetation is such that buildings sited closer to a road will be screened by natural vegetation or dense planting of native vegetation.
The planner's report to Council contained the following statement:
The property is wholly contained within TPS 3 'Landscape Protection Area' where development standards apply - most significantly, a 100metre development setback from public roads.
The proposal, at its closest point, is 21 metres from Nyleeta Close.
It is not clear why the planner's report to Council placed significance on the 100 metre setback requirement because the report to Council also contained a copy of the approved building envelope for this site. The envelope is 40 metres squared, set back 20 metres from Nyleeta Close and 26 metres from Greenwood Heights.
Although the noncomplying setback was referred to Council and was given some emphasis in the report to Council, it has not been identified as an issue by the parties. The Tribunal agrees it is not an issue because cl 3.14.1(j) requires that '[i]f there exists a building envelope for a lot, no person shall construct a dwelling outside the building envelope'. The proposed dwelling is wholly contained within the building envelope.
Finally, in this description of the planning framework, it should be noted that there are no applicable planning policies.

Proposed development

The proposed dwelling designed by Mr Mathew Coniglio, a registered architect, is a single storey two bedroom dwelling with an external verandah and associated decking.
The dwelling has a three degree roof pitch and the external walls are clad in 'shadowclad', a plywood product with vertically expressed joints which the applicant proposes to finish in a green and cream colour.
The dwelling will be manufactured offsite in the form of a transportable dwelling.

Council's decision

The development application was the subject of a report by the Council's planning officer to the Council meeting on 29 April 2009, in which the report recommended refusal.
The Council resolved to refuse the application as follows:
THAT Council advise FR & J Willis and Nordic Homes that [it does] not approve the Application for Planning Consent to [construct] a single transportable type dwelling at Lot 113 Nyleeta Close, Ferguson as per the application received 3 April 2009 as Council are of the opinion that the application does not comply with Shire of Dardanup Town Planning Scheme No 3, Appendix VIII, 'Additional Requirements - Smallholding Zones'.

The issues

The parties loosely defined several issues for the Tribunal to resolve. However, it is apparent from the evidence that the following issue arises for determination in this review:
•Whether the design and materials of the proposed dwelling comply with the provisions of TPS 3.
At the hearing, the Tribunal observed that design merit of the proposal was fundamental and that neither party had an expert witness to provide evidence on design merit. The Tribunal inquired whether the parties wanted an adjournment to seek advice from design experts. Both parties confirmed they wished to proceed with the hearing without the evidence of design experts.

Summary of the applicant's argument

Mr Mark Nylund, a director and shareholder of Nordic Homes, provided evidence for the applicants. Mr Nylund presented evidence that Nordic Homes was established in 2007 with a business model of 'providing highly specified architect designed prefabricated/transportable homes'.
The original application to Council was for a dwelling described as a 'Voss' dwelling selected from Nordic Home's contemporary range. The 'Voss' dwelling was approximately 74 square metres.
The 'Voss' dwelling was designed by Mr Coniglio for a fee of $16,500. After the original proposal (the 'Voss' dwelling) was refused because it was too small, the architect was paid an additional fee to modify the design and increase the size to 100 square metres.
Mr Nylund argued that the engagement of an architect and the amount of fees paid were relevant because it is reasonably possible to engage a draftsman for approximately $600 to design a standard transportable dwelling. He argued in the hearing that Nordic Home's dwellings are highend houses, architecturally designed; going into classy areas and are far superior to utilitarian designs.
The modified 'Voss' design complied with the minimum floor area requirement of Appendix VIII but was refused because of failure to comply with other requirements of Appendix VIII of TPS 3. Mr Nylund argued the relevant clauses of Appendix VIII are (f) and (h) which read as follows:
(f)No dwelling shall be constructed within this zone that has a gross floor area of less than 100 [square metres] including a garage under the main roof, but excluding open carports and/or verandahs.
(h)All dwellings shall have external walls constructed of brick or stone unless in the opinion of Council the design and materials of the proposed dwellings are of a sufficiently high standard to complement and blend in with the natural and surrounding environment.
The proposal complies with cl (f). Therefore, Mr Nylund argued, the tests are whether the proposal is a sufficiently high standard of design, and whether it complements and blends in the natural and surrounding environment.
Mr Nylund argued that 'the surrounding environment was not considered when the Council made its decision. Rather the dwelling was rejected only on the basis that it did not have walls of brick or stone'.
He argued that the external walls of the proposed dwelling are timber and the doors are cedar and therefore blend in with the natural environment of trees.
He further argued that the surrounding environment does not include brick or stone houses but is dominated by lightweight metal clad outbuildings and dwellings with metal and timber walls. Mr Nylund argued that in Area 12 - Greenwood Heights (Area 12) there are only two dwellings that are not lightweight construction and both of those dwellings are rammed earth: neither of them are brick or stone.
In summary, Mr Nylund argued that the proposal meets the minimum size requirement and is a well designed dwelling that complements and blends in with the natural and surrounding development.

Summary of the respondent's argument

Mr Robert Quinn, a qualified town planner employed by the Shire, gave evidence for the respondent. Mr Quinn's evidence was consistent with the evidence of Mr Nylund in that the reason for refusal was based on cl (h) of Appendix VIII. However, Mr Quinn gave added weight to the significance of cl (h) when he stated that cl (h) is unique to Area 12 in Appendix VIII. For example, cl (h) is not included in the requirements for Area 11 which immediately adjoins Area 12. (All future references to cl (h) in these reasons refer to cl (h) in Area 12 of Appendix VIII.)
Clause (h) expands on the provisions for Small Holding Zones described in cl 3.14.1 of TPS 3 where cl 3.14.1(e) requires:
No building shall be constructed within this zone of materials the colour and texture of which, in the opinion of Council, is undesirable for the locality.
It is relevant at this point to note cl 3.14.1(k) which requires:
The erection of second hand buildings or the use of used building materials for external walls and roofs shall not be permitted without the special approval of the Council.
Mr Quinn argued that because the walls of the proposed dwelling are not constructed in brick or stone, the proposal cannot be approved by the respondent 'unless in the opinion of Council the design and materials of the proposed dwellings are of a sufficiently high standard to complement and blend in with the natural and surrounding environment'.
The requirement for a high standard of design is given additional weight by the provisions of cl 5.2.3 of TPS 3 which requires that, in consideration of applications for planning consent within the 'Landscape Protection Area', Council shall have regard to the following:
…
(a)The areas included within Landscape Protection Areas are considered to be areas of significant landscape beauty.
(b)Buildings and associated services should be regarded as being secondary to the natural features of the area and should not usually be permitted in visually exposed areas.
…
Mr Quinn stated, with reference to cl (h), that:
The natural and surrounding environment consists of both the built environment and the natural environment, consisting of landforms and vegetation. The existing built structures along with their design and style are an integral part of the surrounding environment…
The majority of dwellings in the area are substantial in floor area and are of the traditional dwelling style, i.e. pitched roof, weatherboard cladding, etc[.] In this context, substantial is used to describe dwelling floor areas in excess of 200 square metres …
The term 'surrounding' [in cl (h)] can be used by Council to exercise their opinion on what they determine complements the built environment. It is argued that the proposal does not complement the existing dwellings in the surrounding environment due to its size, floor area, style, design and shape etc.
It is argued that the design of the proposed dwelling is not dissimilar to some utilitarian type buildings normally associated with construction and civil works. …
Mr Quinn continued:
The exercise of Council's discretion based on opinion is critical in this decision as it allows Council control over the built environment in the area.
He then made a series of statements that, in summary, concluded that the proposal is inconsistent with community expectations of amenity and the Council, as the elected community representatives of the Shire of Dardanup, represent the community expectations for the Shire. From the written and verbal evidence of Mr Quinn, it appears that the Council felt it was unnecessary to refer the proposal to a design advisory panel because they believed the proposal was clearly not of a sufficiently high design standard to complement and blend in with the surrounding built environment and natural environment.

Findings

It is common ground that because the walls of the proposed dwelling are not constructed in brick or stone, the test to be applied in determining this application for review is whether the design and materials of the proposed dwellings are of a sufficiently high standard to complement and blend in with the natural and surrounding environment.
There was little evidence addressing the relationship between the proposed development and the natural environment. Clause (h) of Appendix VIII requires brick or stone walls. Although it is not stated, it appears that this requirement sets a minimum standard for complementing and blending in with the natural environment. The proposal has timber walls, cedar door frames for external doors and timber decking. The use of natural materials would appear to meet the requirement of 'complementing and blending in with the natural environment'.
However, cl (h), read in conjunction with the provisions in TPS 3 relating to landscape protection areas, indicates that the test extends beyond merely considering the proportion of natural materials used in the exterior of the building. The test must also consider that because the proposal is located in an 'area of significant landscape beauty … [b]uildings … should be regarded as being secondary to the natural features of the area' (at cl 5.2.3 of TPS 3). The combination of the landscape protection area requirements and cl (h) are that the proposal must be of a high standard of design and not dominate the landscape.
The combination of the modest scale of the proposal and the use of natural materials leads the Tribunal to conclude that the proposal is secondary to the natural features of the area, and that it blends in and complements the natural environment.

Such a conclusion does not ignore the matter of design merit in the context of natural environment. It is the Tribunal's finding that design merit is more appropriately dealt with in the context of the surrounding environment.
The respondent's assessment of the proposal in relationship to the surrounding environment places little to no weight on built structures that are not dwellings. This may be because cl (h) refers specifically to dwellings and does not mention 'outbuildings'. Furthermore, there are no design controls within the Scheme on nondwelling structures in this locality. For example, sheds may well be larger and higher than a dwelling and yet there is no control on form, size, colour or materials. The only control within TPS 3 is that they must be located within the building envelope and the planning consent is required under the 'Landscape Protection Area' provisions.
During the hearing, Mr Quinn advised there was a building policy relating to outbuildings/sheds: the key features being that floor area is limited to 200 square meters, wall height is limited to 3 metres and gables/ridge height to 3.9 metres.
Although TPS 3 places no controls on outbuildings, they cannot be ignored because cl (h) requires a new dwelling (not built of brick or stone) to complement and blend in with the surrounding environment. In this context 'surrounding environment' is separate to 'natural environment'.
The respondent's position on this is confirmed in Mr Quinn's witness statement where he observed:
The term 'surrounding' [in cl (h)] can be used by Council to exercise their opinion on what they determine complements the built environment. It is argued that the proposal does not complement the existing dwellings in the surrounding environment …
The Tribunal agrees that it is logical to interpret that 'surrounding environment' in cl (h) refers to 'built environment'. However, the Tribunal does not agree with Mr Quinn's apparent exclusion of outbuildings.
The Tribunal finds that the correct interpretation of cl (h) is that the proposed dwelling complement and blend in with the total built environment, generally comprising of dwellings and outbuildings.
Perhaps there is some common logic to the idea that an outbuilding should look like a shed and a dwelling should look like a house. Such logic leads to design guidelines that deal only with dwellings and ignore other built structures. However, the Tribunal notes that principles of good design require a holistic approach to design of structures in rural settings and that unless an architect aims to create a deliberate (but controlled) clash between outbuilding(s) and the dwelling, that generally good design requires a deliberate harmony between outbuildings and the dwelling.
The expectation of brick or stone walls on dwellings in the locality may result in a lack of design coherence, given the potential prominence of outbuildings. The flexibility contained within cl (h) creates an opportunity for welldesigned lightweight structures for dwellings to harmonise with lightweight structures for outbuildings.
Clause (h) appears to place equal weight on both materials and design:
All dwellings shall have external walls constructed of brick or stone unless … the design and materials of the proposed dwelling are of a sufficiently high standard …
The proposed dwelling uses timber cladding, timber decking and cedar external sliding doors and commercial aluminium window frames. There was no evidence presented and no reason to consider that these materials are inferior or unacceptable. The Tribunal finds that the proposed materials meet the requirement that they are of a 'sufficiently high standard of materials to complement and blend with the natural and surrounding environment'.
Quality design is a complex matter and in the case of architects, is the result of years of academic training and years of supervised practice. The Tribunal agrees with the respondent that assessing the design merit requires an assessment of a wide range of factors, many listed by the respondent in evidence.
It is not entirely clear what the respondent considers to be good design because of the wide range of styles and the varying design standard of the existing dwellings (ignoring outbuildings) within Greenwood Heights.
The only common characteristic appears to be that all have pitched roofs and none are built with brick or stone walls, although two use rammed earth walls. However, most of these dwellings were approved before the gazettal of the Greenwood Heights requirements in Appendix VIII. It appears from the evidence that two dwellings have been approved in Area 12 since the gazettal. One is a 240 square metre relocated timber clad dwelling on Lot 120 Greenwood Heights and the other is a 343 square metre two storey, metal clad dwelling on Lot 124 Greenwood Heights.
The lack of coherence in the existing dwellings is not a problem for the respondent. Indeed, the respondent may reasonably refer to the existing variety of dwellings as a reason for setting higher standards and requiring future dwellings to match the new, high design standards.
In the evidence of Mr Quinn, it is apparent that size is a factor in his consideration of design. He stated:
The majority of dwellings in the area are substantial in floor area and are of the traditional dwelling style, i.e. pitched roof, weatherboard cladding etc[.] In this context substantial is used to describe dwelling floor areas in excess of 200 square metres.
The Tribunal accepts that this is not a 'bigger is better' approach to design merit. However, because 'substantial' is used as a factor in determining design merit, it suggests that at least the respondent's approach is that a 'nonsubstantial' dwelling must cross a higher design threshold than a 'substantial' dwelling.
The Tribunal does not accept this for two reasons. Firstly, TPS 3 sets a minimum standard of 100 square metres. If this threshold is crossed, size ceases to be relevant. Secondly, the respondent has not presented any credible arguments that there is any relationship between size and design merit. Indeed, the Tribunal observes that as size increases, some designers (possibly through lack of skill or an inadequate budget) lose coherence in the design, often manifested in an 'A' standard front elevation contrasting with 'B' grade side and rear elevations. Other typical design flaws of large dwellings are a clash of design themes within the dwelling or a poorly balanced use of materials.
The proposed design does not display any of those flaws. The professional design expertise of Mr Coniglio is apparent with the proposed dwelling being a well designed, neatly balanced dwelling. The Tribunal had the benefit of a set of working drawings, where it was obvious that the design expertise extended to high quality detailing. In terms of the external appearance, the openings in the external walls are well controlled and the horizontal line of the roof over the decking adds the necessary balance to the skillion roof.
The Tribunal finds that the design and materials of the proposed dwelling are of a sufficiently high standard to complement and blend in with the natural and surrounding environment.

Conclusion

The Tribunal has determined that the relatively small size of the proposed dwelling has no relevance because it meets the minimum requirements set out in Appendix VIII. The Tribunal has also determined that the extensive use of natural materials is of a sufficiently high standard to complement and blend in the natural environment. Finally, the Tribunal has determined that the overall design standard of the dwelling is of a sufficiently high standard to complement and blend in with the surrounding built environment.
It follows that the application for review should be allowed and the decision of the Council to refuse development approval should be set aside. There was limited evidence on the proposed external colour scheme for the dwelling beyond that it would be a green and cream colour. In principle, these colours may be acceptable but it will depend on the exact colours. It is appropriate that the respondent should approve the final colour scheme.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 29 April 2009 to refuse development approval for a new dwelling at No 15 (Lot 113) Nyleeta Close, Ferguson is set aside and a decision is substituted that development approval is granted subject to the following condition:
'(1)The external colour scheme is to be to the satisfaction of the Shire of Dardanup'.

I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER