ABERNETHY and CITY OF MELVILLE
[2005] WASAT 41
•30 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: ABERNETHY and CITY OF MELVILLE [2005] WASAT 41
MEMBER: MR D BROWN (SESSIONAL MEMBER)
HEARD: 10 MARCH 2005
DELIVERED : 30 MARCH 2005
FILE NO/S: RD 220 of 2004
BETWEEN: PATRICK ABERNETHY
Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords:
Town Planning - Unauthorised development - S10 Direction - Application for Retrospective approval - Painting of roof - Compliance with policy
Legislation:
Town Planning and Development Act 1928 (WA) s 103(6)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Applicant: Self-Represented
Respondent: Self Represented
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
(Tempora Pty Ltd v Shire of Kalamunda) [1994] 10 SR (WA)
Case(s) also cited:
Nil
MR D BROWN (SESSIONAL MEMBER):
REASONS FOR DECISION
This review relates to two decisions of the City of Melville (the "Respondent"):
(a) Direction issued pursuant to s 10(3) of the Town Planning and Development Act 1928 (WA) (the "Direction") requiring the appellant to remove or alter an unlawful development on Lot 265 (No 25) Broadhurst Crescent, Bateman (the "site"); and
(b)The refusal of an application for retrospective approval to a development involving the painting of the roof of the house on the site (the "development").
Background
The appellant painted the roof of the house on the site in early July 2003, following which the Respondent received a complaint from the owner of 27 Broadhurst Crescent (the "neighbour") about glare from the roof.
The Respondent determined that the work was "highly reflective" and constituted development undertaken without the approval required by the City of Melville Community Planning Scheme No.5 (the "scheme").
On 13 July 2004 the Respondent issued the Direction referred to above requiring the appellant to:
"EITHER
(a)Remove the white paint from the roof of the dwelling on the premises to reveal the original colour of the metal roof;
OR
(b)Repaint the metal roof of the dwelling on the premises in a colour matching the original colour of the metal roof."
The appellant lodged an appeal with the Town Planning Appeals Tribunal (as it then was) against the Direction on 7 September 2004.
On 28 September 2004 the appellant lodged an application with the Respondent for retrospective approval for the "development" and on 21 December 2004 the Respondent refused the application giving as its reasons:
"1.That the paint on the roof of the existing dwelling on [the site] detrimentally affects the visual amenity of the inhabitants of Lot 264 (27) Broadhurst Crescent, Bateman.
2.That the works do not comply with the intent of Planning and Building Policy 45."
The appellant lodged an appeal against this decision on 20 January 2005 and, in accordance with Tribunal directions of 31 January 2004, the decisions to issue the Direction and to refuse the development are to be dealt with together.
The parties agreed that the painting of the roof was development for the purpose of the scheme and required the Respondent's approval.
For the purpose of this review the Tribunal accepts the agreement of the parties in this regard but would stress that the matter of how development is defined, and whether the painting of a roof constitutes development, are not matters to which the Tribunal must turn its mind in this instance.
Nature of the Development
The evidence shows that the house on the site is built within 700mm of the common boundary with the neighbour and has an iron roof that rises at a steep angle to a relatively high roofline. Because the neighbour's property is lower than the site, and with the gutter at the same level as the fence on the common boundary, the roof presents as a shining surface rising 3.5 metres from fence height.
The roof was originally off‑white ("doeskin") coloured metal sheeting that, over time, had deteriorated and needed painting. The appellant gave evidence that because he was concerned about the possibility of glare, he had chosen a low sheen, off‑white colour aimed at achieving a finish similar to the original roof. He submitted evidence of the paint used. He also submitted that the result was consistent with the requirements of both the scheme and Respondent's Policy No. 45 which addresses Highly Reflective Roofing Materials ("Policy No.45"). The appellant conceded that there was glare from the roof when viewed from the neighbour's house, but submitted that, regardless of colour, any new iron roofing would be reflective, as would any paint finish, and that glare would diminish with time.
The neighbour (Mr Quentin Short) gave evidence that, in order to gain maximum natural light, his lounge, formal‑dining, kitchen and outdoor living area are located on the northern side of the house. He indicated that before painting there had been no glare, and no impact on his property. Since painting there is a glare from the roof that has a "devastating" impact on his day‑to‑day living, so much so that, between 9.30 am and 4.00 pm the drapes on the northern side of his house have to be kept drawn and the lights in the house kept on. During these times he cannot enjoy the outdoor area or tend to his garden because of the glare from the roof.
Mr Keith Weymes, the Respondent's Manager of Planning and Development, and a town planner of considerable experience in the matter before the Tribunal, gave evidence that the painting of a roof would not necessarily give rise for concern but that, in this instance, the combination of the steep pitch and height of the roof, difference in level between the site and the neighbour's house, and the colour and finish of the painted roof, has resulted in excessive glare, and impact on the amenity of the neighbour's property. He gave evidence that he had never experienced such a level of glare from a roof in a residential area, which he described as being "unbearable". He submitted that the roof as painted was contrary to the requirements of both the scheme and Respondent's policy for roof finishes.
Relevant Scheme Consideration
GENERAL OBJECTIVE (Clause 2.1)
"The general objective of the Scheme is to maintain and improve the quality of life and services for the residents of the City of Melville. To achieve this and having regard to available options for development and conservation, the Scheme shall be the instrument for coordinating and implementing the land use, socio‑economic and environmental policies of the Council."
SPECIFIC OBJECTIVES (Clause 2.3.1 Housing)
"(a)To enhance the character and amenity of existing residential areas;
(b)To promote a high standard of residential development while providing housing choice."
MATTERS TO BE CONSIDERED BY COUNCIL (Clause 7.8)
"To provide guidelines on matters to be considered, the Council in determining an application for planning approval shall have due regard to the following:
(a)the objectives and provisions of this Scheme … ;
(b)the orderly and proper planning of land within the area;
(c)the existing and likely future amenity of the area;
(d) …
(e) …
(f)any non‑statutory guideline, planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme;
(g) …
(h)the nature of the proposed development in relation to development either existing or proposed on adjoining land…;
(i)the size, shape and character of the lot upon which the development is to be carried out, and the influence which this may have on the siting and nature of any new building;
(j)the design and external appearance, including the exterior cladding, of any new building and its effect upon the amenity of existing buildings and the area generally;
(k) any relevant submissions received on the application;
(l) … .
(m)the effect of the proposal on the objectives and specific strategies as outlined by the Community Concept Plan; and
(n)any other planning considerations which the Council considers relevant.”
NON-STATUTORY PLANNING POLICIES (Clause 9.6)
Under this part the Respondent may make non‑statutory policies providing for any matter related to the planning or development of the scheme area, in particular:
"(f)a Policy shall not absolutely bind the Council in respect of an application for planning approval, but the Council shall have due regard to the provisions of the policy and shall be satisfied that the application is not prejudicial to the objectives of the Policy before making its decision."
A policy made under cl 9.6 is the subject of advertising and public submissions before adoption by the Respondent.
POLICY No.45 HIGHLY REFLECTIVE ROOFING MATERIALS
A non‑statutory policy made pursuant to cl 9.6 of the scheme for the purpose of controlling the use of highly reflective roofing materials on buildings. The policy provides:
"Highly reflective roofing materials (e.g. Zinc and white colour metals) are not permitted unless it can be demonstrated … that there will be minimal adverse impact on the amenity of the area or on adjoining properties."
Conclusion
An application for retrospective planning approval requires that the development be considered against the scheme provisions as though the development were yet to occur. This requires that the Tribunal consider whether the development will maintain the existing quality of life for residents, enhance the character and amenity of the area, promote a high standard of residential development, and be consistent with orderly and proper planning. The Respondent's policy aimed at preventing highly reflective roofing materials is, in this instance, central to this consideration.
Impact on Amenity
An assessment of the impact of the development on amenity requires that the objective character of the neighbourhood be identified, the manner in which the development will affect the amenity of the area be determined, and that the degree of impact of the development on that amenity be identified. (Tempora Pty Ltd v Shire of Kalamunda) [1994] 10 SR (WA).
It was common ground that the issue of amenity was confined to the impact of the development on the neighbour’s house, and did not affect the wider area. Using the same principles for testing impact on amenity used in Tempora PtyLtd v Shire of Kalamunda (supra) it is apparent from the evidence that prior to the roof being painted the neighbour enjoyed a pleasant environment where he could enjoy the outlook from his living areas and from his garden. Whilst caution has to be used in assessing the impact of the development proposed by the appellant, I am persuaded by the objective evidence of Mr Weymes, that the Appellant's preferred finish has resulted in a highly reflective roof that detracts severely from the neighbour's peaceful enjoyment of his property.
On the evidence I am satisfied that the level of impact on the neighbour's amenity is unreasonable. It remains to be determined whether a roof finish such as that proposed by the Respondent can be made to satisfy the principles of orderly and proper planning. In this regard I am mindful of the appellant's argument that any new roof, or newly painted roof, will produce glare that will diminish over time as the roof finish weathers. However, there is nothing to indicate how long this process might take or how long the neighbour will have to endure what I am satisfied is currently an intolerable situation that runs counter to good planning.
I accept the appellant's evidence that the roof needed to be painted, and that he has endeavoured to produce a suitable finish similar to the original roof. Notwithstanding, and on his own evidence, there is glare from the paint he has chosen for the roof. On the evidence of Mr Weymes the glare is excessive and renders the neighbour's daytime living environment intolerable because of the need to draw the drapes at the rear of the house during the daytime, and prevents him enjoying his outdoor living area and garden. There was no evidence to indicate how long it would take for the highly reflective surface to weather to a point where it no longer interfered with the neighbour's amenity.
There was no expert evidence provided with respect to the efficacy of stripping or repainting the roof as required by the notice served on the appellant. However, on the evidence of Mr Weymes, it seems likely that a paint product in 'matt' finish, and possibly of a darker colour, can be found that would be capable of reducing the impact of the roof to an acceptable level. The Respondent indicated a willingness to assist the appellant to arrive at an acceptable solution in this regard.
On the evidence I am satisfied of the need for the roof to be painted, but that the chosen finish detracts from the neighbour's amenity to such a degree that it is inconsistent with both the intent of the scheme and local policy for preventing highly reflective roofing material that detracts from the enjoyment of residents. As such, the development as proposed is contrary to orderly and proper planning. However, common sense dictates that painting of the roof should be allowed but only in a finish that significantly reduces the current level of glare.
For the foregoing reasons the decision of the Respondent dated 21 December 2004, with respect to the retrospective application for planning approval, is set aside, and approval granted subject to:
the painted finish of the roof being non‑reflective, and of a colour that significantly reduces the current level of glare when viewed from the house at No.27 Broadhurst Crescent. In this regard the Tribunal expects that the parties will investigate a mutually acceptable solution.
In the event that the parties cannot resolve the final finish of the roof within a period of 21 days of this decision they have leave to bring the matter back to the Tribunal for determination.
It was common ground that the painting of the roof constitutes development for the purpose of the scheme, and was carried out without the prior approval of the Respondent. In the circumstances peculiar to this appeal, and with the agreement of the parties, the Tribunal accepts that the painting of the roof was development carried out contrary to the requirements of Pt 7 of the scheme. Consequently, I find that the development was unlawful and the Direction given under s 10(3)(b) of the Town Planning and Development Act 1928 (WA) was properly made. However, in view of the approval of the retrospective application now given, the s 10 Direction has no further effect.
I certify that this and the preceding nine pages comprise the reasons for decision of the State Administrative Tribunal.
__________________
MR D BROWN
Member
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