Ordinary Meeting of Council 2 September 2009

Page 1

3.9 RETROSPECTIVE APPLICATION FOR TWO SEA CONTAINERS - LOT 31 (NO. 26) SMALLBROOK RETREAT, CAVERSHAM

(Swan Valley) (Development Services) (DA697-08)

KEY ISSUES

• The applicant is seeking retrospective approval for two sea containers located at Lot 31 (No. 26) Smallbrook Retreat, Caversham.

• The subject property is zoned 'Swan Valley Rural' under the City's Local Planning Scheme No. 17, falling in Area B of the Swan Valley development control area.

• The application has been assessed as a 'use not listed', being an 'A' use, requiring advertising to affected landowners. At the conclusion of the application being advertised, the City received two submissions, both offering no objection to the sea containers.

• The property is identified as being a flood prone area, with the two sea containers being situated within a flood way.

• The property also abuts a Regional Reserve (Parks and Recreation) which is identified as a Bush Forever site.

• The application was referred to the Swan Valley Planning Committee which resolved not to support the application.

• The application was also referred to the Department of Water ('DoW') and the Western Australian Planning Commission ('WAPC'). While neither Authority offered specific advice regarding the application, the DoW did offer general advice that it does not support any development within floodways.

• Planning considerations include the location of the development within an identified floodway and compatibility of the development with the LPS 17 and the Swan Valley Planning Act 1995.

It is recommended that Council refuse retrospective approval for the two sea containers at Lot 31 (No. 26) Smallbrook Retreat, Caversham and inform the applicant that they must be removed from the property within 60 days.

AUTHORITY/DISCRETION

Council may resolve to support approval of the application (with or without conditions), however as this decision would be inconsistent with the advice received from the Swan Valley Planning Committee, in accordance with Clause 26(3) of the Metropolitan Region Scheme, the application (along with Council's recommendation) will need to be referred to the Western Australian Planning Commission for final determination.

Ordinary Meeting of Council 2 September 2009

Page 2

Alternatively Council may refuse the application and if the applicant is aggrieved with the decision of the Council, a right of appeal may exist in accordance with Part 14 of the Planning and Development Act 2005.

BACKGROUND

Applicant: Craig Williams Owner: Craig Williams and Cheryl Williams Zoning: TPS - Swan Valley Rural - Area B MRS - Rural Strategy/Policy: State Planning Policy 2.9 - Water Resources

State Planning Policy 3.4 - Natural Hazards and Disasters Floodplain Management and Development Policy - E9.2

Development Scheme: Local Planning Scheme 17 Existing Land Use: Single house Lot Size: 1ha (approx) Area: 32m2 (approx) Use Class: Sea Containers (Use Not Listed)

DETAILS OF THE PROPOSAL

The applicant seeks approval for two (2) sea containers on the subject property. The sea containers are located to the rear portion of the lot, to the south-west of the existing dwelling. The details of the proposal are as follows:

• Both sea container measures approximately 6 metres in length by 2.4 metres in width and 2.6 metres in height (14m2 each);

• Both sea containers are painted in a neutral cream colour; and

• Both sea containers are located on the low site of an abutting retaining wall, with landscaping along the western side to provide visual screening.

As the sea containers are in-situ, this application is for retrospective planning approval (refer attached Development Plans).

DESCRIPTION OF SITE

The subject property is located at the end of Smallbrook Retreat, Caversham, within a small residential estate that is situated on the southern side of Benara Road (approximately 500m east of Lord Street). The subject property is just over one hectare in size with a single house.

The property is subject to a reasonable gradient, falling to a floodway that crosses the property (refer attached Site Plan). This floodway is associated with Bennett Brook which is located to the south. The sea containers are positioned wholly within the

Ordinary Meeting of Council 2 September 2009

Page 3

floodway. It is also noticed that part of the existing single house on the property also encroaches into the floodway.

There is a drainage easement over the property (in favour of the City) however this is unaffected by the sea containers.

The property falls within Area B of the Swan Valley planning control area with its southern boundary also abutting a Regional Reserve (Parks and Recreation), which is also listed as a Bush Forever site.

SITE HISTORY/PREVIOUS APPROVALS

City records show no relevant planning history relating to the subject property.

OTHER RELEVANT PREVIOUS DECISIONS OF COUNCIL

Nil

APPLICANT'S SUBMISSION

Nil

PUBLIC CONSULTATION

The sea containers were assessed as a 'use not listed' as none of the land use definitions listed in the City's Local Planning Scheme No. 17 ('the Scheme') were considered to adequately describe the development.

In accordance with clause 4.4.2(b) of the City's Scheme, the application was advertised to the adjoining neighbouring property owners. At the conclusion of the advertising period, two submissions were received, both offering no objection to the development.

CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

Department of Water

The application was referred to the Department of Water (DoW) on the basis of the property being located in a flood prone area, as described in Part 6 of the Scheme.

The DoW has advised the City that while it does not offer specific advice with regard to retrospective approval of development, it has offered general advice that it does not support any form of development within the flood plain as it has the potential to adversely impact upstream users in the event of a flood. Development within an identified floodway may be inconsistent with State Planning Policy.

Ordinary Meeting of Council 2 September 2009

Page 4

Western Australian Planning Commission

The application was referred to the Western Australian Planning Commission ('WAPC') on the basis of the subject property abutting a Regional Reserve (Parks and Recreation) which is also listed as a Bush Forever site. The WAPC did not offer any comment regarding the application.

Swan Valley Planning Committee

The application was referred to the Swan Valley Planning Committee ('SVPC') on the basis of the property falling within 'Area B' of the Swan Valley development control area.

The SVPC resolved not to support the application as there is no City of Swan Council management policy relating to such development (refer meeting date 22 June 2009).

The SVPC also recommended that the City develop a policy so that such matters can be consistently handles in the future.

REPORT

Zoning

The subject lot is currently zoned 'Swan Valley Rural' under the Scheme. The objectives of this zone are: (a) Promote the core area of the Swan Valley primarily as a horticultural,

recreational, tourism and landscape resource; (b) Provide for limited rural living within the Swan Valley, subject to locational,

design and landscaping requirements to enhance the character and amenity of the valley and to ensure compatibility with productive rural activities;

(c) Recognise the occurrence of high quality horticultural soils and scarce plastic clays and to protect these resources from development which would jeopardise their current and future use;

(d) Ensure that the development and use of land accords with the planning objectives for Area B as specified in the Swan Valley Planning Act 1995.

Due to the limited size of the property and its location within a small residential estate, the likelihood of the property ever being used for any significant horticultural, viticultural or tourism purpose is scarce, regardless of the sea containers.

With regard to the planning objectives for the Swan Valley, the SVPC has previously advised that sea containers are generally not compatible with the Swan Valley, although this has been determined on an individual merit basis. It is worthy to note that the Swan Valley Planning Act 1995 states as follows: “The planning objectives for any proposed development in Area B are as follows -

4. The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area.

Ordinary Meeting of Council 2 September 2009

Page 5

6. The compatibility of design, siting and landscaping with the character of the area”.

It is difficult to maintain that the use of sea containers as storage facilities is consistent with these objectives.

The SVPC did not support this application.

Use Permissibility

The proposed development is not considered to be adequately described by any of the existing land use definitions in the Scheme.

As such, the development is deemed to be a 'use not listed' in accordance with clause 4.4.2(b) of the Scheme. Council may consider a 'use not listed' as an 'A' use, being not permitted unless approved by Council after appropriate advertising to affected landowners.

Floodplain Development

Development in areas prone to flooding is addressed through State Planning Policy, the City's Scheme and the City's 'Floodplain Management' Policy, all of which Council must pay due regard to when considering development in floodplains.

State Planning Policy 2.9 - Water Resources

The WAPC has prepared and adopted State Planning Policy 2.9 ('SPP2.9') to addresses the management of the State's water resources.

SPP2.9 recommends that all floodplains and areas that are prone to flooding should be identified and that no development should be permitted in a flood path that could carry an increased risk to public safety or property.

State Planning Policy 3.4 - Natural Hazards and Disasters

The WAPC has prepared and adopted State Planning Policy 3.4 ('SPP3.4') that specifically addresses development within flood prone areas. SPP3.4 adopts the 100 year Average Recurrence Interval ('ARI') flood as being the defining flood event, as modelled by the Department of Water.

SPP3.4 identifies that floodways are where floodwater will be expected to flow fast and deep during a 100 ARI flood and that development in a floodway should not be permitted as it is considered obstructive and may result in upstream flood levels increasing.

Local Planning Scheme 17

Part 6.3 of the City's Local Planning Scheme 17 ('the Scheme') also requires Council to have regard to flood prone areas.

Clause 6.3.3 states that Council may either constrain the location or level of development or refuse development outright in the context of flood prone areas.

Floodplain Management Policy

Ordinary Meeting of Council 2 September 2009

Page 6

In response to Section 6.3 of the Scheme, the City's 'Floodplain Management' policy outlines the City's objectives as being:

• To conserve the environmental features of the floodplain. • To ensure that development is compatible with flood management in order to

minimise the risks and effects of flooding. • To encourage development which maintains or enhances the physical and visual

amenity of the floodplain. • To provide guidelines for the use and development of the floodplain.

Section 3 of the Policy goes on to outline that as far as possible, the topography of the floodway should be left in its natural state to safeguard the effective discharge of floodwaters.

Clause 3.2 then states that with the exception of public works associated with flood mitigation, development will not be permitted in a flood way.

OPTIONS AND IMPLICATIONS

Option 1: Council may resolve to refuse the application on the basis that the proposed is contrary to the Scheme objectives and provisions regarding development in a flood prone area and the Swan Valley development control area. This is the preferred option.

Implication: If aggrieved with Council's decision, the applicant has the right of review to the State Administrative Tribunal within 28 days of Council decision.

Option 2: Council may resolve to support retrospective approval for the two (2) sea containers ('use not listed'). In accordance with Clause 26(3) of the Metropolitan Region Scheme, the development application (along with Council's recommendation) is to be referred to the Western Australian Planning Commission for final determination. This is not the preferred option.

Implication: This option will result in the Western Australian Planning Commission being the determining authority for the application.

CONCLUSION

The application before Council is for the retrospective approval of two (2) sea containers that are located at Lot 31 (No. 26) Smallbrook Retreat, Caversham.

The application has been assessed as a 'use not listed', making the development not permitted unless approved by Council once appropriate advertising has been undertaken.

The subject property falls within 'Area B' of the Swan Valley development control area. The application was referred to the Swan Valley Planning Committee ('SVPC') which advised the City that it did not support the application as there is no City of Swan Council management policy relating to such development.

Ordinary Meeting of Council 2 September 2009

Page 7

The subject site also abuts a Bush Forever Regional Reserve (Parks and Recreation) and falls within an identified flood prone area (floodway), with the application referred to the Western Australian Planning Commission ('WAPC') and the Department of Water ('DoW') respectively. While the WAPC did not respond, the DoW advised the City that in general it does not support any development within an identified flood plain.

Notwithstanding the argument of whether these particular sea containers are in keeping with the Swan Valley character, the primary matter for consideration is their location within a floodway. This location is potentially obstructive to floodwaters, which in turn may inadvertently cause floodwater levels to increase upstream. Furthermore by approving this development application in the floodplain could be construed as setting an undesirable precent for similar development within a flood prone area.

Should Council resolve to support the application, as this decision would be inconstant with the advice of the SVPC, the application (along with Council's recommendation) will need to be referred to the WAPC for final determination. Alternatively should Council resolve to refuse the application, the Council will be the determining authority.

It is recommended that the application be refused on the basis that it is contrary to State Planning Policy 2.9 and 3.4, the objectives of Area B under the Swan Valley Planning Act 1995 and the City's Scheme provisions regarding development in a flood prone area. The applicant should be notified that the two (2) sea containers must be removed.

ATTACHMENTS

• Location Plan

• Site Plan (with floodway superimposed)

• Development Plans

• Site Photographs

STRATEGIC IMPLICATIONS

Nil

STATUTORY ENVIRONMENT

Metropolitan Region Scheme

Local Planning Scheme No. 17

State Planning Policy 2.9 'Water Resources'

State Planning Policy 3.4 'Natural Hazards and Disasters'

Ordinary Meeting of Council 2 September 2009

Page 8

FINANCIAL IMPLICATIONS

Nil

RECOMMENDATION

That the Council resolve to:

1) Refuse the retrospective application for two (2) sea containers ('use not listed') for Lot 31 (No. 26) Seabrook Retreat, Caversham, as depicted in the current plans stamped 16 January 2009 for the following reasons:

a. The application is inconsistent with the orderly and proper planning of the locality.

b. The application is inappropriate having regard to Part 6 (Special Control Areas - Flood Prone Areas) of the City's Local Planning Scheme No. 17.

c. The application is inconsistent with the City's Planning Policy E9.2 'Floodplain Management and Development'.

d. The application is contrary to State Planning Policies 2.9 'Water Resources' and 3.4 'Natural Hazards and Disasters'.

ADVICE NOTES

i. The development is located wholly within an identified 100 year Average Recurrence Interval Floodway, with any development potentially obstructive to floodwaters which may result in upstream flood levels increasing at a risk to public safety or property.

ii. With regard to recommendation 4, State Planning Policies 2.9 and 3.4 were prepared by the Western Australian Planning Commission, in accordance with Section 26 of the Planning and Development Act 2005. The City must pay State Planning Policies due regard when making planning decisions.

2) Advise the applicant that the unauthorised sea containers must be removed from the subject property within 60 days from the date of the refusal letter.

3) Advise the applicant that should the sea containers not be removed within the specified time period, the matter will refer to the City's Compliance Officer to commence appropriate legal action in accordance with the Planning and Development Act 2005.

CARRIED

Ordinary Meeting of Council 2 September 2009

Page 9