…00

Document Sample
…00 Powered By Docstoc
					D Kronenberg and T O’Sullivan v R & L Jenyns [2007] TASRMPAT 201 (7 September 2007)
File No: A13/07, J 201/2007 88 Blowhole Road Eaglehawk Neck - S64 LUPAA
BETWEEN D Kronenberg and T O‟Sullivan AND R & L Jenyns Respondents Applicants

This is an application pursuant to Section 64 of the Land Use Planning and Approvals Act 1993 for orders with respect to development and building works at 88 Blowhole Road Eaglehawk Neck. The application was heard at Hobart on the 17th July 2007 S McElwaine of Counsel appeared on behalf of the Applicants. A Walker of Counsel appeared on behalf of the Respondents. P Jackson of Counsel appeared on behalf of the Tasman Council.

DECISION
1. A planning permit for a house extension/addition combined with a garage workshop was issued by the Tasman Council (the „Council‟) to the applicants on 23 April 2007. The permit was issued subject to the following conditions: 1. The development shall take place and operate generally in accordance with Planning Permit Application DA34/2007 and accompanying plans except for any variations included in the following conditions. If the external surface of the building is to be painted the colour must be approved by Council in consultation with the adjoining neighbours. All runoff from roofs shall be directed to tanks to be used for domestic water supply. The workshop hereby approved shall only be used for activities usually associated with domestic workshop.

2.

3.

4.

2.

The Applicants who own land adjoining the development site have lodged an application pursuant to Section 64 of the Land Use Planning and Approvals Act 1993 (the „Act‟), seeking orders in the following terms: 1. That all development and building works for an extension/outbuilding/shed/garage or other structure

situate on the property known as 88 Blowhole Road Eaglehawk Neck in Tasmania cease until further order of the Resource Management and Planning appeal Tribunal or the issue of a valid permit for such works pursuant to the provisions of the Resource Management and Planning appeal Tribunal or the issue of a valid permit for such works pursuant to the provisions of the Land Use Planning and Approvals Act 1993 and the Tasman Planning Scheme 1979; 2. That all development works for such development which have been undertaken without a valid planning permit, be required to be demolished within a timeframe to be determined by the Tribunal. That the Respondents pay the costs of and incidental to this application.

3.

3.

It is the Applicants‟ contention that the permit issued by Council is not valid on a number of grounds: 1. It is contended that the documents accompanying the application were so defective that Council could not have made a proper assessment pursuant to the provisions of the Tasman Planning Scheme 1979 (the „Scheme‟) or the Act. That the application should have been advertised as discretionary in accordance with the provisions of Clause 7.7 of the Scheme. That the use/development is not a permitted use under the Scheme. That no permit has been issued by Council authorizing development works beyond the boundaries of the subject site. That the Applicants did not comply with the provisions of Section 52 of the Act. The terms of the permit do not authorise the development works which have been undertaken on the site in respect to siting, excavation and height.

2.

3.

4.

5.

6.

The Proposal 4. Frank Darke, Planning Manager with the Tasman Council submitted the following evidence regarding the proposal. The subject site is presently occupied by an elevated single dwelling with a floor area of approximately 120 m2. The proposed building which is currently under construction consists of two levels with no connection between the levels. The proposed floor area is 150 m2 with each level having dimensions of 5m x 15m. The footprint is 75 m2. The lower level is excavated into the side of the hill so that the building appears from the front as an elevated two storey building and one storey from the rear.

File No: A13/07

Page 2

J No. 201-2007

5.

The history of development on this site is that an application was made by the Respondents in December 2006 for the construction and use of a “new shed/outbuilding” The application was treated as discretionary and advertised pursuant to Section 57(3) of the Act. One of the conditions attached to the permit stated “The use of the building is to be restricted to the production of art works by the residents of the dwelling on the site and the storage of such art works.” An appeal against Council‟s decision was lodged with the Tribunal. A preliminary ruling by the Tribunal determined that Council had failed to adequately describe the development application in its notification process and accordingly Council‟s decision to issue the permit was invalid. The Tribunal concluded that Council‟s classification of the use category as miscellaneous meant that Council had determined that the structure was not a building “ordinarily appurtenant” to the dwelling, a permitted development and had accordingly failed in its obligation to accurately describe the contents of the proposal including the use proposed. Mr Darke submitted that the construction which is the subject of this application is of the same dimensions as that sought in the December 06 application. The significant variation is the description of the proposed use. A letter from the Respondents in support of their application described the extension/addition as “a single storey construction with, underneath the building, a garage at the front and a workshop/household storage space at the rear of the area. The main floor will be an open living space including a library and drawing area. The walls of this area will be lined or rendered and painted, and moveable interior partition walls will allow flexibility in the living space”. The application form received by Council on 5 April 2007 described the proposed development as “a house extension/addition combined with a garage/workshop”. A site plan dated 15/9/2006 and floor plan with south, front and rear elevations and a section accompanied the application. A further letter dated 13 April 2007 written by the Applicants advised that the proposed house extension/addition will have three different uses: 1. Enclosed undercover storage for a vehicle at the front of the building; Storage of domestic objects and furniture (currently our property which has no storage area); A basic workshop that will contain a band saw, table saw, buzzer, work bench and assorted hand-powered tools.

6.

7.

2.

3.

This area will be used for making sculpture and other usual activities associated with a domestic workshop. 8. Council assessed the application and determined that the proposed building constituted a single dwelling. The provisions of the Scheme do not require a single dwelling to be contained within the one building. The garage/workshop was classified as an outbuilding being appurtenant to the dwelling. Council considered that the development met the height requirements of Clause 7.7 of the Scheme and accordingly determined that the development application was permitted and did not require notification. Council contends that there are no valid grounds for an order to be made in terms of the application under Section 64(2) of the Act.

File No: A13/07

Page 3

J No. 201-2007

9.

Ms Duckett gave evidence on behalf of the Applicants. She said that they do not accept that there is any intended change of use of the building from that sought by the original application being essentially an artist‟s workshop. One of the joint owners of the subject site, an applicant for the development and respondent to this application, Robert Jenyns gave oral evidence. Mr Jenyns, a retired artist described his artistic activities as comprising drawing, painting and sculpting. Not having a separate studio, he currently undertakes these activities in the dwelling located on the site. He agreed that the proposed new workshop would be used to make his objects and that he would use the upstairs area for drawing. Mr Jenyns said that he occasionally sells some of his works of art (in the order of 20 to 30 per year) and occasionally produces work for exhibitions. He has no intention of selling any of his art work from his home and any work to be sold would be sent to a gallery. The Tribunal accepted Mr Jenyns evidence that his artistic work is integral to his lifestyle and whilst he does sell some of his work, profit making is not the primary object.

10.

Mr Jenyns contended that the existing dwelling is far too small for their current usage and they desire the proposed additions to accommodate guests as well as provide them with additional living space by way of a library and drawing area, enclosed garage and workshop. Use description 12. Frazer Read, consultant planner, gave evidence supporting the Council‟s assessment of the application as an extension to a single dwelling and a permitted use and development under Section 58 of the Act. Mr Read based his opinion on the Scheme definition of single dwelling which in the interpretation provision of Clause 1.4 is described as: “Means a dwelling for a single family, together with such outbuildings as are ordinarily appurtenant thereto, but excludes a dwelling in a row dwellings attached to one another, commonly known as semi-detached, terrace, town or row houses.” 13. Mr Read examined the plans approved by Council and considered the description of the proposed use as advised in correspondence submitted in support of the application from Mr and Mrs Jenyns. Mr Read considers that the proposed structure meets the requirements of an extension to a single dwelling as defined under the Scheme. In his view the size of the garage storing area and proposed layout are domestic in scale. In Mr Read‟s opinion the use of the first floor is directly associated with the use of the existing dwelling in providing a greater area of living space. He maintained that an extension such as the one proposed does not need to be physically connected to the existing house in order to be integral to its use. The word “single” in the Scheme definition of “single dwelling” precedes the word “family” meaning that the dwelling be used to accommodate just one family. The Scheme does not impose any limits on the number of single dwellings on a lot. Nor does the Scheme require that an extension to a single dwelling be physically connected to the existing building. The Scheme definition of “dwelling” is “any building or portion of a building which is used or is intended, adapted or designed for use as a self-contained unit for cooking, eating, sleeping and living purposes”. The evidence was that the proposed extension will not have any cooking or bathroom facilities. The subject building could not therefore be classified as another dwelling within the meaning of the Scheme definition.

11.

14.

File No: A13/07

Page 4

J No. 201-2007

15.

The question arises as to whether this structure comprises an extension to the existing single dwelling or an outbuilding ordinarily appurtenant to the dwelling within the meaning of “single dwelling”. The Building Code of Australia suggests that dwellings may consist of more than one building as demonstrated in Figure 1.3.3 of the BCA 2000, Volume 2 (General Requirements). The plan view for Figure 1.3.3 shows a shed and sleepout which are noticeably much smaller in scale to the main dwelling. This cannot be said of the subject building which is to incorporate a large living area and a garage and workshop. A site visit by the Tribunal confirmed the significant size of the building which is now partially constructed.

In the Tribunal‟s view because such a significant component of the building, namely 75 m2 comprises living space, it is inconsistent with the Scheme definition of an “outbuilding ordinarily appurtenant to” the main dwelling. Mr Read opined that the size of the garage and storage area are domestic in scale. This section is however just one half of the total building. The Tribunal prefers the evidence of Ms Duckett who opined that the scale and two-storey nature of the structure exceeds that of a shed or garage or other domestic uses which would ordinarily be associated with a domestic outbuilding. The stated total floor area of 150 m2 exceeds the existing floor area of the single dwelling on the site being some 120 m2. The Tribunal accordingly concludes that the proposal does not meet the Scheme definition of a “single dwelling”. Adequacy of application documents 16. 17. It was contended at the hearing that the two plans accompanying the development application were not drawn to the scale required to enable a proper assessment by Council. The site plan contained measurements but was not scaled. The approved floor plans were drawn at a scale of 1:100. The elevations and sections were at a scale of 1:200. Mr Darke, Manager of Planning with the Council prepared his report in support of the application on the basis of engineering plans which had been prepared for the building approval in relation to the original application. It was his evidence that he was satisfied on the basis of these plans that the subject application meets the requisite development standards with respect to the position of the proposed building height and setback distances. The Tribunal notes that except for vertical floor to floor and ceiling heights on a section, there are no dimensions. The drawings must be scaled to determine the building size. The Scheme does not specify what plans should accompany a development application. Clause 5.1.2 states: “Such application shall contain a description of the proposed development or use and such further particulars as Council deems necessary to enable the Council to determine the application.” 19. 20. Clause 6.2 specifies matters that the Council should take into consideration. Mr Darke was cross-examined regarding Council‟s checklist which is provided to applicants and contains details of matters in respect of which Council may require information in considering a proposal. Mr Darke conceded that information addressing most of the matters identified in the checklist did not accompany the subject application but contended that Council had sufficient information upon which it was able to consider the application. Mr Darke maintained that the Scheme does not require the provision of such information which will be sought by Council according to the complexity of a proposal. Council had not sought this additional information because it had access to the engineering drawings which it considered adequate in the circumstances.

18.

File No: A13/07

Page 5

J No. 201-2007

21.

Council was aware that the plans accompanying the development application were not a proper representation of the size and scale of the development and accordingly sourced this information from the engineering drawings in Council‟s possession which had been prepared for the earlier proposal. The Council was satisfied on the basis of the plans and information provided with the application that the engineering drawings related to the same development proposal. Mr Jenyns stated in his proof of evidence that the two plans that accompanied the development application were not to scale and that scale drawings would be subsequently made available for the Tribunal hearing. A3 drawings which were not to scale were supplied. Whilst the engineering drawings may appear to relate to the development proposal there are significant variations between the drawings. The drawings which accompanied the development application and were subsequently approved by Council appear to be correct in terms of the indicated scale and show a building 4.5 metres wide by 15.75 metres long. The engineering drawings considered by Council in its assessment process indicate different dimensions. Those drawings scaled 1:100 show a building 5.45 metres wide by 15 metres long. The section AA drawing at a scale 1:50 shows a width of 5.35 metres. One of Mr Bamford‟s drawings shows the length of the building at 15 metres. The site plan when scaled indicates a width of 4.43 metres. It was also agreed at the hearing that the building has been constructed some .92 metres above the ground level approved by Council‟s permit. A site visit revealed the following further discrepancies between the approved plans and the construction. There is an additional large opening on the south-east side facing the existing dwelling. The central pier in the front elevation width and the end wall returns differ from the approved plans. It is also evident that the ground floor width proposed for the garage will not accommodate an average vehicle. The approved width of 4.45 metres and allowing for two wall thicknesses plus the roller door, leaves an internal depth of approximately 4 metres which is not long enough to accommodate an average vehicle. Whilst part of this area has been approved for use as a garage, the Tribunal is now unclear as to its intended use. The discrepancies identified in the preceding paragraphs show that the drawings considered by Council in its assessment process differ from those approved in the granting of the permit. They also vary from the building as approved and now under construction to the extent that part of the proposed use, namely a garage, cannot be accommodated. The Tribunal is accordingly not satisfied that the Council complied with the provisions of Clause 6.2.2 which requires consideration of detailed plans.

22.

23.

24.

Height 25. The Applicants contend that the development does not comply with the Scheme standard with respect to height of buildings which reads as follows: “Clause 7.7.1 except with the consent of Council, no building shall contain above the highest point of the natural surface of the ground directly beneath it, more than one storey.” 26. It was Ms Duckett‟s evidence that the proposal clearly indicates a two-storey building. Accordingly Council‟s decision to treat the application as permitted was flawed because the provisions of Clause 7.7.1 require Council‟s consent for a building containing more than one storey.

File No: A13/07

Page 6

J No. 201-2007

27.

In considering whether or not to grant a permit for a building containing more than one storey Council is required to consider the matters detailed in Clause 7.7.2 and there is no evidence that it did so. The Applicants contend that the combined effect of the provisions of 7.7.1 and 7.7.2 render the subject application discretionary which requires consideration in accordance with the provisions of Section 57 of the Act including the requirement to give notice as prescribed. As Council treated the application as a permitted development, its decision to issue a planning permit must constitute a purported decision and therefore one which cannot be upheld. Clause 1.4 of the Scheme interprets the word “storey” as having the same definition as contained in the Building Regulations 1978 which states: “Means the space or distance, or the portion of a building, included between the underside of the floor joists of any floor and the underside of the floor joists of the floor next above it, or the underside of the tie beam or collar tie, or half the vertical height of the rafters above … “

28.

29.

The plans tendered in evidence and a site visit confirmed that the structure clearly contains two storeys as defined by the Building Regulations and as commonly understood being a portion of a building or room set one above the other. The object of Clause 7.7.1 is to control the overall height of buildings because it references the height restriction to the highest point of the natural surface of the ground. The term “natural surface” is not defined in the Scheme but it has been accepted as being the pre-existing surface level and not the excavated surface level. The Tribunal considered the term “natural surface level” in its decision JR Clennett v A Bergman and Residential Equity Pty Ltd [2005] TASRMPAT 239 and stated at paragraph 13: “The Tribunal notes that in the present instance the use of the phrase „natural surface level‟ is for the purpose of measuring the height of buildings above surface level. It cannot reasonably mean a level which was changed in the few months preceding the application, nor can it mean the level pertaining before human activity. In the urban context, the Tribunal considers it is that level which has been established for at least a period of years prior to the proposed development.”

30.

31.

On the basis of this interpretation Council considered that the proposed building is only one storey above the highest point of the natural surface level beneath it and accordingly met the Scheme standard as prescribed in Clause 7.7.1. Mr McElwaine submitted that the clause should be interpreted as requiring a consideration of the whole of the structure meaning each and every part of it vis-à-vis the natural contours of the land beneath it prior to disturbance. Mr McElwaine contended that the intent of the provision is clearly to limit the impact of structures on the landscape. By limiting the assessment to the highest point of the natural surface level of the ground, excavation of the site could result in a three-storey building. Mr McElwaine suggested that a sensible interpretation of the clause is that no building or part thereof shall contain above the highest point of the natural surface of the ground directly beneath it, more than one storey. Mr Walker and Mr Jackson urged the Tribunal to interpret the clause as it reads without the addition of the additional words as suggested by Mr McElwaine. Mr

32.

33.

File No: A13/07

Page 7

J No. 201-2007

Walker submitted that the Tribunal should not ignore the words as they appear in the clause and that the meaning should be gleaned from the words as they read. To adopt Mr McElwaine‟s interpretation would result in a requirement that no building could contain more than one storey. If this is what the Scheme intended it would have so stated. The Scheme does not limit the number of storeys but its object is to limit the overall height of buildings above natural ground level. 34. The Tribunal accepts Mr Walker‟s submission that the clause should be interpreted as it reads. Importing the additional words as suggested by Mr McElwaine leads to quite a different interpretation which would require an examination of the height of the building at each point of variation in the contours of the land beneath it. The Tribunal accepts that the result of a literal interpretation of Clause 7.7.1 as it appears could result in a multi-storey building following extensive excavation. This however is consistent with the intent of the clause which is to limit the height of buildings above natural ground level. The development plans and a site visit confirmed that overall the building is not more than one storey above the highest point of the natural surface level of the ground for where it appears as two storeys at the rear of the building, the ground beneath the second storey has been excavated. Accordingly the Tribunal accepts that the building complies with the provisions of Clause 7.7.1.

35.

Encroachment 36. The Applicants submitted a plan of elevation prepared by John Bamford, registered surveyor, and a survey plan which demonstrated that the building under construction which is the subject of the development permit encroaches over the boundary of an adjoining property by 50mm. This evidence was not disputed and the Tribunal accepts it. Whilst Mr Jenyns accepted the encroachment, he explained that the setout measurements were undertaken by his builder who determined to rotate the concrete slab inwards away from the boundary because of the presence of rocks discovered in the excavation process. The result of rotating the slab was that a small section of the building protrudes over the boundary. The Applicants contend that the permit does not authorise development works beyond the boundaries of the subject site, nor did the Respondents comply with the provisions of Section 52 of the Act by notifying the owner of the adjoining property. The Tribunal accepts these submissions. Whilst the encroachment has been made out, Council for the Respondents urged the Tribunal to consider the impact of the encroachment which could be described as minor, trivial and indeed inconsequential. There was no evidence that the encroachment poses any detrimental impact for the neighbouring property. The Tribunal was referred to the decision in Clarence City Council v. DJ Ausling [2006] TASRMPAT 193 where it was stated at paragraph 26: “As indicated above the jurisdiction of the Tribunal exercising in this case is one in the nature of injunctive relief. It is plain that it is necessary for the Tribunal to have regard to appropriate matters that go to the discretionary exercise of that power. It is not the case that mere finding of a breach of the Scheme leads only to the conclusion that it is necessary to make orders in the terms sought

37.

38.

39.

40.

File No: A13/07

Page 8

J No. 201-2007

in this particular case. The existence of the word “may” in Section 64(3) makes this much clear.” 41. The Land and Environment Court of New South Wales in its decision Butland v. Cole [1995] 87 LGERA 122 found that the encroachments in that case which consisted of 5cm from a paved driveway, sandstone landscaping encroaching by 8.5cm, a section of sandstone retaining wall by 18cm to 65cm and a small section of concrete or stone fish ponds encroaching between 10cm and 35cm were significant enough to warrant the relief sought. There was no evidence that the breach was intentional. In the absence of a detrimental impact, the Tribunal accepts that the 50mm encroachment is not significant enough to justify the relief sought in the application.

42.

Conclusion 43. For the reasons outlined above the Tribunal concludes that the proposed dwelling was incorrectly assessed by Council as a single dwelling which is a permitted development for the zone. The proposal should have been classified as a miscellaneous use which is discretionary in the zone and must be considered in accordance with the provisions of Section 57 of the Land Use Planning and Approvals Act 1993. The proposal would accordingly require notification to those persons whose amenity may be impacted by the development. As the Council erroneously assessed the subject development application as a permitted development and issued a permit pursuant to the provisions of Section 58 of the Act, the Tribunal accordingly determines that no valid permit exists and grants the application. It is the Tribunal‟s view that the development works should be demolished in the event that the applicants do not obtain a valid planning permit for all or any part of the works currently constructed. The building constructed to date has the potential to negatively impact on the amenity of the surrounding area. The Tribunal orders as follows: 1. That all development and building works for an extension/outbuilding/shed/garage or other structure situate on the property known as 88 Blowhole Road, Eaglehawk Neck in Tasmania cease until the issue of a valid permit for such works pursuant to the provisions of the Land Use Planning and Approvals Act 1993 and the Tasman Planning Scheme 1979. That in the event that a valid planning permit for the works is not issued within 6 months from the date hereof, the parties are to submit written submissions by the 21st March 2008 regarding a timeframe for demolition of such works which have been undertaken without a valid planning permit.

44.

45.

2.

46.

The Tribunal will entertain any application for an order for costs in this appeal, if made to the Tribunal in writing with supporting submissions within the next fourteen days. If appropriate the Tribunal will reconvene to hear any evidence in respect of any matter bearing on an order for costs.

File No: A13/07

Page 9

J No. 201-2007

47.

In the absence of any such application for an order for costs the order of the Tribunal is that each party bear its own costs.

Dated 7 September 2007

B McNeill Member

AF Cunningham Presiding Member

REJ Cannell Member

File No: A13/07

Page 10

J No. 201-2007


				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:18
posted:11/9/2009
language:English
pages:10