LAST WORDS (MORE A HOPE THAN A PROMISE!) ON THE OVERSIZED SHED SAGA

Over recent days, a friend of mine has engaged in an exchange of emails with one of the councillors.  She did so hoping the councillor would shed some light (sorry, I couldn’t resist it) on why she voted to approve the application to construct an oversized shed at Lewis Road.

My friend has kindly forwarded those emails to me.  There are several of them, and they take up a fair bit of space, so rather than publish them in full I’ll extract what I believe are the councillor’s main reasons for voting as she did, adding my (italicised) comments in square brackets. 

Statements enclosed in double quotation marks come from advice the councillor received directly from the Shire administration.

I’ll round off my observations with a brief survey of some relevant cases at law.

First Reason: ‘Planning policies aren’t binding’

Planning policies, unlike administrative policies, are not binding on Council.  Instead, councils are bound “to have due regard to the provisions of the policy and the objectives of which [sic] the policy is designed to achieve before making its decision”.

Those objectives are twofold: to “provide flexibility for outbuilding size, construction and materials” to meet residents’ needs, and to “ensure that outbuildings are constructed and located in such a way as to minimise their impact on the amenity of the locality”.

The objectives are binding, even though policy isn’t.

In one of her emails, the councillor says: ‘…over the past week I have come to a new understanding of of the flexibility of planning policy, especially as it applied to the approval of the shed—that it wasn’t as prescriptive as I had first thought’.

[My response: In that case, why bother to have planning policies at all? Why not just ‘have regard’ to the objectives?

The relevant policy as it stands has flexibility programmed into it by way of a 5% leeway.  Commonsense would suggest that this leeway is intended to define the absolute limits of what Council will exercise discretion to approve while the policy stands.

What exactly is meant by ‘flexible’, if a proposal is allowed to exceed the stated degree of variation that a policy defines? 

And how far does ‘due regard’ extend?  Surely the point of a planning policy is so far as possible to set objective standards for what developments are permissible and for determining their likely impact on present and future amenity?  ‘Due regard’ is so vague as to be almost meaningless.  It gives too much scope for subjective judgement.

Allowing subjective judgement—i.e. ‘discretion’— to prevail overmuch in planning matters is dangerous. It makes nonsense of policy (and policy objectives) and offers opportunities for cronyism and other more serious forms of corruption. 

Please don’t tell me those sorts of things are entirely unknown in York and elsewhere in WA.  Remember the Balladong pool!

The councillor’s ‘new understanding’ gives excessive preference to subjective judgement over objective standards.]

Second Reason:  Anomalies

The councillor follows the Shire planner in saying that outbuildings on residential lots (R10) are permitted a higher wall height than on rural residential lots (R5/10), despite residential lots being smaller. 

This, she says, is an anomaly that Council intends at some stage to put right.  

[It is an anomaly, and it’s good that something is to be done about it.  I would agree that there is scope here for the rational exercise of discretion based on objective standards that apply in comparable situations. 

Perhaps, though, it’s better to change the policy formally rather than simply to disregard it.  There are few things more destructive of public confidence in an elected body than perceptions of favouritism or bias.]

Council also intends ‘to revise existing planning policies to make them more flexible and suited to the needs of our community’.

[Substitute the buzzword ‘flexible’ with the homely word ‘elastic’, and up goes a red flag and off goes a warning bell.  I ask again, how flexible is ‘flexible’? Doesn’t policy already allow for a reasonable degree of flexibility?

Under a different council or administration, could greater ‘flexibility’ result in the effective abandonment of objective standards in favour of ad hoc decision-making for the benefit of family, friends, and even well heeled companies and corporations?  You bet it could!] 

Third Reason:  Lifestyle

‘People come to the country…to enjoy a different lifestyle, often with more space around them, as well as animals.  This often involves machinery, equipment and vehicles not needed on smaller blocks, all of which require shelter.  Therefore, I appreciated the flexibility being applied to this shed application that would allow an extra 102 sq m for such a purpose.’

[Yes, councillor, we do expect to enjoy a more relaxed and spacious lifestyle in the country than in the city—but there have to be prescribed limits to what that expectation may entail.

Nobody detests the nanny state more than I do, but a neighbourly existence is hardly possible if my relaxed and spacious lifestyle intrudes too severely upon my neighbour’s right to live in reasonable comfort and peace.  Tolerance is a great thing, but selfishness isn’t.

For example, it seems reasonable to regulate the number of hens permissible on a residential lot, even a fairly large one.  Chickenfeed attracts mice, and chicken poo attracts flies.

 Inevitably, the more chickens you have, the more mice and flies they will attract, to the annoyance and discomfort of the neighbours—though in the case of mice, probably to the delight of the neighbours’ cats.   

Again, it seems reasonable to regulate the number of roosters on a residential lot, or even to exclude them altogether.  As it happens, I enjoy the matutinal crowing of a single rooster.  Many years ago, when my wife and I were living in Bayswater, we had a pet rooster named Trotsky who was very self-disciplined in his crowing regime and excited neither comment nor complaint. 

But multiple roosters sharing accommodation tend to set one another off, and to crow all day, and keeping more than one may amount to a strident declaration of war on surrounding residents. 

In those circumstances, if Council says ‘only one rooster’ or even ‘no roosters’ it isn’t being inflexible or tyrannical, it’s exercising a proper and democratic concern for other residents.

As for the flexibility applied to the cumulative floor space of outbuildings on the Lewis Road property—we’re not talking of a little bit of flexibility here, but of an increase of almost 70%, which is way over the top. 

If every neighbouring property in the rural residential zone were to follow suit—and who could now deny them the opportunity—then as my friend Roma Paton has written, the place would end up looking like Kewdale.

So on what basis do you welcome that degree of flexibility?  Please don’t tell me you have a friend who wants to build an oversized shed on land zoned residential…]

And now for something completely different—a quick look at the law

The overwhelming view of the courts in recent decades has been that while authorised decision-makers may have a degree of discretion in applying policy, departures from policy should be ‘cautious and sparing’ and occur only for ‘cogent reasons’ (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

We know what ‘cautious and sparing’ means—‘not reckless, not often and not very much’—but what about ‘cogent’?  Macquarie, Australia’s national dictionary, defines cogent as ‘…compelling assent or belief; convincing; forcible’, and cogency as ‘…power of proving or producing belief; convincing force’.

The phrase ‘cogent reason’ reverberates through policy and planning case law relating to every level of government.  Let’s confine our discussion to local government in WA. 

In Crisp and the Town of Cambridge [2014] WASAT 71, the Town had a precinct policy emphasizing ‘rear laneway access to retain existing streetscapes’.  Crisp appealed against the Town’s refusal to allow construction of double garages facing on to the street. 

Member Jordan referred to what he called ‘planning orthodoxy…that relevant planning policy has presumptive effect’—i.e. that it must be presumed to apply without exception to all relevant situations —‘and is not to be displaced except for a cogent planning reason’.   In this case no such reason had emerged, so he dismissed the appeal.

Another phrase used interchangeably with or alongside ‘cogent reason’ is ‘exceptional circumstance’. For a court to uphold a proposed variation from a local government planning policy, there must be something extraordinary in the facts supporting the proposal that would justify special treatment.

I doubt very much that being related to an old York family, or being counted among the friends of Crs Randell and Smythe, or being a councillor or the spouse, partner or friend of a councillor, could be held to constitute an exceptional circumstance. 

The rule of law means, among other things, that applicants for planning permission should receive equal consideration in comparable circumstances regardless of who they might be. 

That’s why Council’s Lewis Road decision has created a precedent permitting residents of comparably sized properties in the rural residential zone to have outbuildings covering a total area of 300m².

Damave and the Shire of Dandaragan [2008] WASAT 257 is an oversized shed case.  Shire policy placed limits on the area of outbuildings, with scope for discretion via special approval in the case of outbuildings covering between 162 and 216m².  Damave’s proposal, rejected by the Shire, exceeded that upper limit.

Dismissing the applicant’s appeal for review of the Shire’s decision, the Tribunal held that ‘in order to retain the integrity of the policy, support for applications beyond the 216m² limit would have to be based on exceptional circumstances.  The simple desire of an applicant to have more extensive outbuildings does not constitute an exceptional circumstance or establish a cogent reason why the planning principles that find expression in the policy are not relevant’.

Another oversized shed case is Wignall and City of Albany [2009] WASAT 73.  In that case, the Tribunal ruled that ‘the accumulation of equipment to assist in pursuing a particular lifestyle’ doesn’t count as an exceptional circumstance.

I think that makes nonsense of the ‘lifestyle’ argument put up by our anonymous councillor to support her case for ‘flexibility’ in the matter of oversized sheds.

There are many similar cases, but I think I’ve said enough to make my point.  Binding or not, policy isn’t a plaything. 

Councillors need to take policy seriously, and to exercise ‘flexibility’ only within the scope for flexibility that the policy itself prescribes. 

If they don’t like the policy, they have the option to change it, but while it subsists, it shouldn’t be lightly waived, disregarded or set aside. 

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Tiny People 

See thread below comprising a comment from Jyoti (5/8/16 @ 22:10) and my remorseful response.