CITATION: Roger and Janette Steele –v- Development Consent Authority NTLMT 31
PARTIES: ROGER AND JANETTE STEELE
v
DEVELOPMENT CONSENT AUTHORITY
TITLE OF COURT: Lands and Mining Tribunal
JURISDICTION: Lands and Mining Tribunal Act
FILE NO(s): LMT-31-2001-P (20105170)
DELIVERED ON: 29 June 2001
DELIVERED AT: Darwin
HEARING DATE(s): Not applicable
JUDGMENT OF: David Loadman
CATCHWORDS:
PLANNING ACT – APPLICATION FOR PERMIT TO OPERATE BED AND BREAKFAST – CONSENT USE IN ZONE R1 – STRUCTURAL AMENDMENTS TO STRUCTURE
Planning Act (NT)
Lands and Mining Tribunal Act 1998 (NT),
REPRESENTATION:
Counsel:
Appellants: Self
Respondent: Self
Solicitors:
Appellants: Self
Respondent: Self
Judgment category classification: b
Judgment ID number: NTLMT 31
Number of paragraphs: 90
IN THE LANDS AND MINING TRIBUNAL
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. LMT-31-2001-P (20105170)
BETWEEN:
ROGER AND JANETTE STEELE
Appellants
AND
DEVELOPMENT CONSENT AUTHORITY
Respondent
DECISION
(29 June 2001)
DAVID loadman, CHAIRMAN
HISTORY
1. On 6 March 2001 the appellants before this Tribunal were heard on an application for a permit by the Development Consent Authority (“the respondent”).
2. The application was for consent to make certain structural additions to an existing dwelling at Lot 1324 (No 4) Zealandia Crescent, Larrakeyah (“the land”). Further and following upon the completion of such construction, to operate a “bed and breakfast option” on the land.
3. The relevant Town Plan is the Darwin Town Plan 1990(“DTP”). Under the DTP the land is zoned R1 (Residential 1).
4. Following upon the hearing of the application on 6 March 2001, the respondent issued a Notice of Refusal NR01/0005 dated 8 March 2001 (“the Notice of Refusal”)
5. The reasons for refusal as set out in the Notice of Refusal are as follows:
”1. The proposal will adversely impact on the amenity of the neighbourhood
2. The proposed car parking arrangement is inadequate for the use of a Bed and Breakfast
3. The proposed Bed and Breakfast extension has inadequate architectural merit.”
6. On 5 April 2001 the appellants lodged a Notice of Appeal (“Notice of Appeal”) at the Lands and Mining Tribunal pursuant to section 118 of the Planning (Consequential Amendments) Act No 56 of 1999 (“PA”)
7. The Notice of Appeal was filed within the prescribed time; complies with section118 PA; was accompanied by the prescribed fee and subsequent to being sealed was served on the respondents in this matter. There has been no amendment of the Notice of Appeal. The grounds of the appeal as set out in the Notice of Appeal are as follows
“GROUNDS OF THE APPEAL
12. The development proposal complies with the requirements of the Darwin Town Plan, and the applicants were provided with a statement to this effect by staff of the Development Assessment Services Branch of the Department of Lands, Planning and Environment.
13. The proposal is consistent with the reasons for Amendment Number 74 to the Darwin Town Plan to provide for bed and breakfast accommodation.
14. The proposal is supported by the Tourism Development Division of the Department of Industries and Business.
15. The proposal is supported by residents who have experience of living near bed and breakfast accommodations.
16. The proposal is designed to minimise loss of privacy to the residents on the eastern side of the land, who are the most affected by the proposal.
17. The Authority is wrong in rejecting the proposal on the basis that the proposal will adversely impact on the amenity of the neighbourhood because
a. the submissions of people who have actual experience of living near bed and breakfast accommodation attests that they have experienced no disturbance from the operations of these premises and that they have experienced no loss of amenity.
b. the Authority should have given more weight to the submissions of people who have actual experience of living near bed and breakfast accommodation in assessing the likely effects on the amenity of the neighbourhood.
18. The Authority is wrong in rejecting the proposal on the basis that the proposed car parking arrangement is inadequate for a bed and breakfast operation because
a. the proposal complies with the requirements, including car parking, of the Darwin Town Plan as they relate to bed and breakfast accommodation.
b. the applicants were provided with a report by Development Assessment Services of the Department of Lands, Planning and Environment stating that the proposal fully complies with the Darwin Town Plan.
c. if the Authority was not satisfied with aspects of the car parking arrangement, it should have afforded the applicants an opportunity to amend the plan to attend to any defect in the car parking arrangement.
d. the plan is capable of amendment to attend to any defect in the car parking arrangement.
19. The Authority is wrong in rejecting the proposal on the basis that proposed extension has inadequate architectural merit because
a. the elevation of the proposed extension from the street will match the height and shape of the main dwelling.
b. the proposed extension is adequately shaded.
c. if the Authority was not satisfied with aspects of the architectural design, it should have afforded the applicants an opportunity to amend the design”.
8. Pursuant to section 121 PA, a mediation conference was fixed by this Tribunal to commence on 23 April 2001.
9. On 11 May 2001, a Notice under section 127 PA was received from the appellants advising that a compromise or settlement had not been reached. Further that the appellants wished the matter to be determined by the Tribunal. The parties were accordingly instructed by the Tribunal to provide written submissions as directed.
10. On 25 May 2001 the Tribunal received the appellant’s submissions (“appellant’s submissions”), the relevant material therein being set out below:
“APPELLANTS' ARGUMENT IN RELATION TO THE GROUNDS OF THE APPEAL
1. Car parking
1.1. It is convenient to deal with Grounds of Appeal 1 and 7 together, and to answer Reasons for Refusal 2 at the same time, as the issues within them are closely related.
1.2. The applicants submitted plans of the proposed development which showed the intended car parking arrangement for bed and breakfast visitors. The car parking arrangement showed space for two vehicles on an existing paved area, expressly constructed for the purpose of parking cars, in front of the existing dwelling. Cars parked on this area are parked in tandem, ie, one behind the other. The parking arrangement is shown in photographs at Attachment 8 of the Supplementary Submission of 27 February 2001 to the Development Consent Authority pp 49 50.
1.3. In addition to these two spaces, a carport at the side of the dwelling accommodates two cars in tandem arrangement. The proposal envisaged that these two spaces would be used by the residents of the dwelling, as they are now so used.
1.4. The requirements for car parking for bed and breakfast accommodation are set out in clause 17.10(b) of the Darwin Town Plan. This clause requires two car parking spaces to be provided on the site.
1.5. The applicants considered that their proposal met the parking requirements of the Darwin Town Plan, and this view was consistent with the contents of an Assessment Report prepared by the officer handling their application in Development Assessment Services of the Department of Lands, Planning and Environment. The Assessment Report stated that the proposal complied with the parking requirements of the Darwin Town Plan.
1.6. Consequently, the applicants did not offer any amendment to the visitor parking layout at the time the application was considered by the Development Consent Authority at its meeting on 6 March 2001.
1.7. When the issue was raised at the meeting of the Authority on 6 March 2001, the vehicle manoeuvring as it presently occurs was described : if both spaces are occupied, the front vehicle will move in forward gear on to the lawn in front of it, reverse past the rear vehicle on a small section of the lawn adjoining the paved parking area, on to the concrete driveway, and exit the site in forward gear.
1.8. If the Assessment Report had not reported full compliance with parking requirements, the applicants' plan would have shown a different visitor parking layout, as shown in the attached Drawing No. 2026/ 1 Rev B p 1.
1.9. If the Authority, after considering the application, did not consider the parking layout acceptable, it could have sought an amended layout from the applicants or amended the plan itself. If the Authority had sought an amended plan from the applicants, the applicants would have submitted Drawing No. 2026/ 1 Rev B to answer the Authority's concerns.
1.10. Amendment of the layout presents no impediment to approval as s 53(a)(ii) of the Planning Act allows the Authority to consent to an amended development application.
1.11. In summary, the appellants' argument is that the visitor car park layout is simple to resolve, and there is no reason why the amended layout is unacceptable.
2 . Architectural merit of the proposed extension
2.1. In relation to Ground of Appeal 8 and Reason for Refusal 3, the applicants submitted plans which they considered met the main objective of their proposed enterprise to provide a comfortable and pleasant suite for visitors to their bed and breakfast business.
2.2. In doing so, they were also conscious that the proposed extension would become part of their residence, and that it would permanently affect the appeal and appearance of their dwelling. The proposed extension was designed such that its height and roof line when viewed from the street, would match that of the existing dwelling. The roof line of the existing dwelling is flat, so to achieve this effect whilst still providing a pitched roof for the proposed suite, the front wall of the extension would extend above the roof line of the suite.
2.3. Admittedly, the plan submitted with the application did not contain a notation that the front wall would be rendered to match the scallop relief pattern of the existing dwelling. However, the applicants stated at the hearing of the application that it was intended to render the front wall to match the existing dwelling.
2.4. The applicants also considered that their proposal incorporated adequate shading for the proposed suite in that a 900 mm wide roof overhang, consistent with that commonly found on detached dwellings, was proposed on the eastern side of the building. In addition, the western side would be shaded by the roof of the existing dwelling and carport. p 31.
2.5. The applicants considered that they had taken reasonable steps to ensure that the proposed suite would be consistent with the proportion of their existing dwelling, and that roof form and the facade pattern, texture and colour would also match.
2.6. However, improvements can always be made to any building, and if the applicants, having become aware that the Authority had concerns about this issue, had been afforded the opportunity to make improvements to the design before their application was rejected, the applicants would have submitted Drawing No. 2026/3 Rev B p 2.
2.7. This drawing shows an improved window design facing the front of the building in that the window shape reflects the shape of existing and proposed arcs.
2.8. The appellants consider that the proposal shown in Drawing No. 2026/3 Rev B answers the Authority's concerns, and that the proposal could have been approved under s 53(a)(ii) of the Planning Act, which allows consent to an amended application.
2.9. The appellants' argument is that perceptions of architectural merit are subjective, and that architectural merit is not to be judged simply by whether one likes or dislikes a building. The appellants say that the test of this particular building's architectural merit is whether the building is reasonable in its functional and physical context. The features of the proposed suite should be considered in the context of the manner in which it is intended to be used and occupied. This context includes the purpose of the proposed suite to provide accommodation for a small number of visitors in a homelike atmosphere, and its permanent association with the applicants' dwelling.
3 . Compliance with the Darwin Town Plan and consistency with the purposes of Amendment No. 74 to the Darwin Town Plan to provide for bed and breakfast accommodation
3.1. In relation to Ground of Appeal 1, the appellants repeat that they were provided with an Assessment Report by the planning officer handling their application, and that the report stated that their proposal fully complied with the requirements of the Darwin Town Plan.
3.2. This view was repeated in the officer's report to the Authority, and endorsed by her superior officer, the Director of Development Services. A copy of the officer's report, bearing the endorsement of the Director, is at pp 311.
3.3. Insofar as the Authority considered the parking layout to be unsatisfactory, a simple solution is available, as outlined in paragraphs 1.8 and 1.9 of this submission.
3.4. In relation to Ground of Appeal 2, Amendment No. 74 (pp 34 35), introduced "bed and breakfast accommodation" as a specific land use category. The explanatory document required to be exhibited with that amendment stated that there is a demonstrated need for bed and breakfast facilities, and that the amendment would enable such accommodation to be provided in private dwellings with intensity being controlled by provisions designed to protect the amenity and lifestyle of neighbours.