WOODINGS and SHIRE OF DANDARAGAN
[2014] WASAT 139
•16 OCTOBER 2014
WOODINGS and SHIRE OF DANDARAGAN [2014] WASAT 139
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 139 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:171/2014 | 21 AUGUST 2014 | |
| Coram: | MS J BELL (SESSIONAL MEMBER) | 16/10/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | HELEN WOODINGS ROSS WOODINGS SHIRE OF DANDARAGAN |
Catchwords: | Town planning Development Refusal Oversized shed Policy on oversized sheds Nil side setback in conflict with policy Impact on amenity of neighbour and locality Relevance of precedent |
Legislation: | Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2013), cl 4.2.1, cl 5.4.3, Pt 5 Shire of Dandaragan Local Planning Scheme No 7, cl 5.2.2, cl 10.2 |
Case References: | Nil |
Orders | On the application heard on 21 August 2014 by Sessional Member Judith Bell, it is on 16 October 2014 ordered that: ,1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
Summary | This was an application for review of the respondent's decision to refuse development approval for an outbuilding for storage purposes (shed) within the rear yard and on the side boundary of an existing dwelling in Jurien Bay. The application was refused on the grounds that it did not comply with the setback provisions for oversized outbuildings in the Residential Design Codes of Western Australia (2013) and the Shire of Dandaragan Local Planning Policy 8.6 Outbuildings 'Residential Areas', and would detract from the visual amenity of residents and neighbouring properties.,The applicants said that the shed was required to accommodate a large boat and a caravan, and its location on the side boundary was necessary to enable safe manoeuvring of the vehicles. The applicants referred to other oversized sheds approved by the Council in the local area, including one on the adjoining lot to the north. It was maintained that this had set a precedent and provided justification for approval of their application.,The Tribunal found that the size, bulk and location of the shed on the side boundary would have a significant impact on the adjoining property and considered that there were no reasonable circumstances to justify a reduced side setback in this case. ,The Tribunal dismissed the application for review. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WOODINGS and SHIRE OF DANDARAGAN [2014] WASAT 139 MEMBER : MS J BELL (SESSIONAL MEMBER) HEARD : 21 AUGUST 2014 DELIVERED : 16 OCTOBER 2014 FILE NO/S : DR 171 of 2014 BETWEEN : HELEN WOODINGS
- ROSS WOODINGS
Applicants
AND
SHIRE OF DANDARAGAN
Respondent
Catchwords:
Town planning Development Refusal Oversized shed Policy on oversized sheds Nil side setback in conflict with policy Impact on amenity of neighbour and locality Relevance of precedent
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2013), cl 4.2.1, cl 5.4.3, Pt 5
Shire of Dandaragan Local Planning Scheme No 7, cl 5.2.2, cl 10.2
Result:
Application for review dismissed
Summary of Tribunal's decision:
This was an application for review of the respondent's decision to refuse development approval for an outbuilding for storage purposes (shed) within the rear yard and on the side boundary of an existing dwelling in Jurien Bay. The application was refused on the grounds that it did not comply with the setback provisions for oversized outbuildings in the Residential Design Codes of Western Australia (2013) and the Shire of Dandaragan Local Planning Policy 8.6 Outbuildings 'Residential Areas',and would detract from the visual amenity of residents and neighbouring properties.
The applicants said that the shed was required to accommodate a large boat and a caravan, and its location on the side boundary was necessary to enable safe manoeuvring of the vehicles. The applicants referred to other oversized sheds approved by the Council in the local area, including one on the adjoining lot to the north. It was maintained that this had set a precedent and provided justification for approval of their application.
The Tribunal found that the size, bulk and location of the shed on the side boundary would have a significant impact on the adjoining property and considered that there were no reasonable circumstances to justify a reduced side setback in this case.
The Tribunal dismissed the application for review.
Category: B
Representation:
Counsel:
Applicants : Mr M Bellemore (Acting as Agent)
Respondent : Mr I Rennie and Mr D Chidlow (Acting as Agents)
Solicitors:
Applicants : N/A
Respondent : Shire of Dandaragan
Case(s) referred to in decision(s):
Nil
Introduction
1 These proceedings involve an application brought by Mr Ross Woodings and Mrs Helen Woodings (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Shire of Dandaragan (Shire, Council or respondent) on 24 April 2014 to refuse development approval for an outbuilding for storage purposes (shed) at No 38 (Lot 499) Whitlock Loop, Jurien Bay (subject land).
Site and locality
2 The subject land is 860m² in area and has on it a single storey residential dwelling. It is located in a residential area developed predominantly with single storey residential dwellings.
3 Viewing of the site by the Tribunal and photographs filed by the parties show vehicular entrance from the street to an open carport adjoining the northern side of the dwelling, and fenced access to the rear yard between the carport and the northern side boundary.
4 Adjoining the subject land to the north is No 40 (Lot 500) Whitlock Street which has on it a single storey dwelling and a large shed in the rear yard located on its northern boundary. The land adjoining the rear boundary of the subject land to the east is undeveloped urban land.
The proposal and refusal
5 The applicants applied for development approval for a Colorbond shed to accommodate a caravan and a boat at the rear of the existing dwelling. The proposed shed is 11.47 metres in length, 7.06 metres in width and has an area of 80.98m². The wall height of the shed is 3.6 metres with a calculated ridge height of 4 metres and the end wall facing the street will provide roller door access for the caravan and the boat. The shed is proposed to be located on the side boundary between the subject land and the adjoining Lot 500, set back 3.6 metres from the rear boundary.
6 The respondent refused the application for the following reasons:
1. the proposed development does not comply with Tables 2a and 2b of the Residential Design Codes of the Shire of Dandaragan Local Planning Scheme No.7 in that the proposal does not conform to the setback provisions of the Codes;
2. the proposed development does not comply with the deemed to comply requirements of [cl] 5.4.3 C.3 iii, iv & v of the Residential Design Codes of the Shire of Dandaragan Local Planning Scheme No. 7 in that the proposal does not meet the site area, wall height and ridge height provisions of the Codes;
3. the proposed development does not comply with Local Planning Policy 8.6 - Outbuildings 'Residential Areas' for maintaining minimum rear/side setbacks and is over height for the applied for setback;
4. the proposed development detracts from the visual amenity of residents and neighbouring properties; and
5. the proposed development does not comply with orderly and proper planning for the locality.
Planning framework
7 The subject land is zoned Residential R12.5 under the Shire of Dandaragan Local Planning Scheme No 7 (LPS 7).
8 Clause 5.2.2 of LPS 7 requires development for residential purposes to conform with the provisions of the Residential Design Codes of Western Australia (2013) (Codes).
9 Clause 5.4.3 C3 of the Codes sets out the deemed to comply provisions for outbuildings. If the deemed to comply provisions are not satisfied, a planning application is required and this is to be assessed against the design principle at cl 5.4.3 P3 which states:
Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
10 Clause 10.2 of LPS 7 sets out the matters which may be relevant to the consideration of an application for planning approval and includes the following:
(a) the aims and provisions of the Scheme and any other relevant local planning schemes operating within the Scheme area;
…
(f) any Local Planning Policy adopted by the local government under clause 2.4[;]
…
(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;
(p) whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles[.]
11 The Council adopted the Shire of Dandaragan Local Planning Policy 8.6 Outbuildings 'Residential Areas' (LPP 8.6) in June 2008 and the most recent update was on 19 September 2011. LPP 8.6 provides direction and guidance on the area and height of outbuildings in residential areas of the Shire and the determination of applications for outbuildings that do not meet the deemed to comply provisions of the Codes. LPP 8.6 indicates that where a parapet/boundary wall is proposed (that is, a wall within 750 millimetres of a boundary), a maximum wall height of 3 metres and length of 9 metres will apply.
12 A variation to LPP 8.6 requires comment from the affected property owners, and consideration with regard to the design principles of the Codes. As the proposal did not meet the deemed to comply provisions of the Codes and LPP 8.6, adjoining landowners were duly advised, and no submissions or objections were received.
Issues
13 The significant issue for consideration agreed to by the respondent and the applicants is whether there is sufficient justification for the approval of a reduced side setback for the wall length and height of the shed which does not comply with LPP 8.6 and the Codes.
14 Other issues for consideration are whether approval of similar sized outbuildings in the townsite with reduced setbacks justify granting approval at this location and whether amenity will be detrimentally affected at this location by the reduced side boundary setback.
Respondent's position
15 The respondent submitted that the proposed shed does not comply with the purpose and intent of the Codes and LPP 8.6, and will detract from the visual amenity of residents and neighbouring properties.
16 The respondent agreed that there was a demand for larger sheds to accommodate boats and caravans in Jurien Bay and indicated that LPP 8.6 had taken this into account. In this instance, the size of the shed was of concern because of its location on the side boundary and the impact of its bulk and scale on the amenity of the adjoining property.
17 It was submitted that the side wall of the shed would be double the height of a standard dividing fence (1.8 metres) and would extend 11.47 metres (64%) along the common boundary of the rear yard of the adjoining Lot 500. Mr Chidlow, a senior planner called by the respondent, indicated that as a result, the rear yard of the adjoining dwelling would be almost enclosed on each side by the existing shed on the northern boundary of their property and the proposed shed creating a corridor or tunnelling effect.
18 The respondent referred to the Explanatory Guidelines of the Codes (Section 4 - Design Elements of the RCodes Context) which explain the basis of setback controls set out in Pt 5 of the Codes. Two of the overarching principles to be considered in the assessment of designs (cl 4.2.1) were cited, the first that the taller or longer a building, the further it should be set back and the second that community acceptance of reduced side and rear setbacks is greater in medium/high density areas than low density areas. The respondent argued that this is a low density residential area and that the shed should be set back at least 1 metre, or preferably 1.5 metres, to achieve a better sense of open space.
19 The respondent acknowledged that if the shed is relocated 1.5 metres from the side boundary, it may be more difficult to reverse the caravan and the boat, given its proximity to the dwelling. It was submitted, however, that the shed could be marginally reduced in length and relocated on the site to facilitate manoeuvrability. One possibility suggested by the respondent was to relocate the shed closer to the rear boundary, and another was to reorient the shed within the rear yard, with the longer side facing the rear boundary.
20 The respondent acknowledged that the Shire had approved similar sized outbuildings with reduced setbacks in Jurien Bay, but emphasised that each application is assessed on its merits, particularly with regard to the compatibility of such development with its setting and the relationship of the proposal to development on adjoining land or the locality. In addition, the respondent contended that precedents, although a factor, should not be considered as the sole determinant of the proposal.
Applicants' position
21 The applicants submitted that Council needed to adjust LPP 8.6 to cater for an increasing trend for larger outbuildings to reflect the demands for protection of boats and caravans by retirees and new homeowners settling in Jurien Bay. In the applicants' case, a larger shed was required to accommodate a boat (9 metres in length and 2.4 metres wide) and a caravan (7 metres in length and 2.4 metres wide), and needed to be located on the side boundary to facilitate vehicle movements.
22 The applicants filed photographs of similar sized buildings in Jurien Bay, including the large shed on the adjoining lot, and contended that there was no reason to consider their application differently. Reference was made to the neighbouring Shire of Coorow which supported such outbuildings on residential properties. The applicants also referred to previous acknowledgement in Council minutes in 2012 of the problems of creating dead spots around buildings which are set back minimum distances from lot boundaries.
23 The alternatives of reducing the length, reorientation or relocation of the shed were not considered by the applicants to be reasonable or acceptable. The length of the shed was considered necessary to provide for functional space around the boat and the caravan and reorientation or relocation as suggested by the respondent would create significant difficulties in manoeuvring both the boat and the caravan into the shed. Location of the shed closer to the rear boundary and set back 1 metre or 1.5 metres from the side boundary would increase the length of the reversing area, prevent reversing in a straight line and increase the risk of striking the boundary fence. In addition, the applicants intended to locate the rainwater tank at the rear of the shed to collect rainwater off the Colorbond roof of the shed.
24 In the applicants' view, the shed, given its location 24 metres from the front of the boundary, would not impact on the amenity of properties in the area nor the amenity of the neighbouring property which already has a 16 metre long, 4.2 metre high shed on its northern boundary. The applicants contended that although the locality is zoned Residential R12.5, they considered it to be medium-high density 'as there have been several residential developments in our near vicinity over the last 15 years'.
Comment and conclusion
25 The principal issue for consideration by the Tribunal is the impact of the bulk and scale of the proposed outbuilding (shed) on the visual amenity of the adjoining or neighbouring properties.
26 The Tribunal notes that although LPP 8.6 acknowledges the demand for larger outbuildings by allowing for increased floor areas, wall and ridge heights, it also attempts to achieve a balance between protecting the visual amenity of the area by requiring setbacks from rear and side boundaries. The flexibility of LPP 8.6 is also noted and the ability to vary the provisions if it can be demonstrated that there will not be an unacceptable impact on the local area.
27 During the site view it was observed that despite the existence of several large sheds at the rear and side of properties, this suburban locality has retained a relatively open appearance as a result of the single storey built form of most dwellings set within large lot sizes of 800m² to 900m². The Tribunal agreed with the respondent that the area has been developed at a low density.
28 The impact of the bulk and height of the proposed shed on the streetscape and the majority of the surrounding properties was considered to be negligible, given the separation distances. This was not considered to be the case for Lot 500, the adjoining property to the north, which already has a large shed on its northern boundary. The Tribunal noted that this shed was approved in 2000, well before the adoption of the current policy. In the Tribunal's view, the construction of a similarly large shed along the southern boundary of Lot 500 would have a substantial impact on the amenity of the rear yard of the dwelling, and demonstrated the potential cumulative effect of such decisions on the local area.
29 The applicants indicated a level of inconvenience associated with reducing the size of the shed, its reorientation and relocation, but did not provide a convincing case that such alternatives had been seriously considered or were not feasible. Conversely, the respondent indicated during the hearing, by reference to a filed aerial photograph, that other lots in the immediate area had been required to deal with similar access constraints and had accommodated such requirements in outbuildings located closer to the rear of their properties or with appropriate setbacks.
30 The respondent had acknowledged that there is an ongoing problem with the creation of 'dead spots' between buildings and side and rear boundaries, but the Tribunal did not see this as sufficient reason to support the approval of buildings on boundaries where visual amenity could be compromised. The Tribunal is also satisfied that past decisions had required consideration in the context of the particular local circumstances and that there was no reasonable evidence to indicate that past decisions in the Shire had established a precedent for the approval of this application.
31 The Tribunal concludes that the bulk and size of the proposal on the northern boundary of the subject land would have a detrimental impact on the visual amenity of the adjoining property to the north, and that there is not sufficient justification to support a variation to LPP 8.6 and the Codes and approve the proposed shed.
Orders
32 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 [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J BELL, SESSIONAL MEMBER
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