Adam and City Of Fremantle
[2008] WASAT 226
•26 SEPTEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ADAM and CITY OF FREMANTLE [2008] WASAT 226
MEMBER: MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 26 SEPTEMBER 2008
FILE NO/S: DR 1 of 2008
BETWEEN: KEN ADAM
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Retrospective approval - Additional section of screening wall - Application of Codes - Subject site part of larger 'grouped dwelling' development - Importance of definition of Codes - Adjoining property - Merits based assessment requires consideration of interrelationship between strata lots within the parent lot - Amenity impacts - Loss of ocean view and outlook - Bulk and overshadowing - Privacy enhanced - Costs
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 4.2.1(e), cl 4.2.2, cl 5.2 cl 5.4.2, cl 8.4.1, cl 10.2.1, cl 10.3.1, Sch 1, Sch 12
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2)
Residential Design Codes of Western Australia (2008), cl 6.3.1(P1), cl 6.3.2(P2)
Result:
The application is allowed
The decision of the respondent is set aside and conditional approval is granted
Application for costs is dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr S Bain (Representative)
Solicitors:
Applicant: Self-represented
Respondent: SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Adam v City of Fremantle [2004] WATPAT 131
Booth and Town of East Fremantle [2008] WASAT 155
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
Kellet and Town of Vincent [2007] WASAT 155
Moonvale Enterprises Pty Ltd and City of Joondalup [2008] WASAT 179
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Ken Adam applied to the State Administrative Tribunal for review of the City of Fremantle's decision to refuse retrospective planning approval for a 'balcony and deck screen wall' to an approved two storey dwelling at No 2/79 Thompson Road, North Fremantle (Strata Lot 2).
The principal issue that emerged for consideration in the review was the impact of the proposed development on the amenity of the adjoining strata lot (Strata Lot 3).
The State Administrative Tribunal found that the additional section of screening wall would ensure a higher level of amenity to the residents of Strata Lot 2 as their level of privacy would be enhanced by reducing overlooking from the balcony area of Strata Lot 3. The amenity of Strata Lot 3 would be reduced in two respects and enhanced in any respect. The amenity of Strata Lot 3 would be reduced as the additional section of screening wall would marginally reduce the view of the ocean and outlook from the balcony area and would have a minimal overshadowing impact for limited times of the year. The amenity of Strata Lot 3 would be enhanced because the level of privacy to a section of the balcony would be improved.
On balance, the State Administrative Tribunal considered the application should be approved for the following four reasons. Firstly, the view that would be lost from the balcony area of Strata Lot 3 is not the only view of the ocean that can be observed from that area. Secondly, the view is obtained through what is effectively another dwelling's private open space. Thirdly, the bulk is fairly insignificant with minimal overshadowing impact. Fourthly, there is a genuine privacy benefit to Strata Lot 2 evidenced by the fact that the view is obtained through their private open space.
Finally, the State Administrative Tribunal rejected an application by the Mr Adam for the City of Fremantle to pay its costs of the proceedings. The State Administrative Tribunal considered that its general approach in planning cases, under which each party pays its own costs, should not be departed from in the circumstances of this case.
Introduction
An application for planning approval was lodged with the City of Fremantle (respondent or City) on 6 September 2007 for retrospective approval for a screen wall panel located on the site boundary of No 2/79 Thompson Road, North Fremantle (subject site or Strata Lot 2).
The application to commence development was refused by the respondent at its meeting of 28 November 2007 for the following reason:
Does not comply with Clause 3.3.2 of the Residential Design Codes as there is a significant affect on the amenity of the adjoining property.
Mr Adam (applicant), on 29 December 2007, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
The Tribunal also received a joint application from Ms H Rossiter, Dr R Rossiter and Mr TA Lemmon (submitters), owners of Strata Lots 3, 4 and 5 of No 79 Thompson Road, North Fremantle, seeking leave under s 242 of the PD Act to make a submission in relation to this matter. The Tribunal found that the submitters had sufficient interest in the matter and afforded each of them the opportunity to make a written submission on the effect of the additional section of screening wall on their respective dwellings.
Pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), conduct of the matter proceeded entirely on the basis of documents, although the Tribunal had the benefit of a view accompanied by representatives of the respective parties and one of the submitters.
Subject site and its context
The subject site is located on the eastern side of Thompson Road near the junction of Craig Street in North Fremantle. Strata Lot 2 is essentially oriented north-south, and has a total area of 161 square metres. The subject site forms part of a larger 'grouped dwelling' development comprised of 10 strata lots and, at present, three common property lots (Strata Plan 36206). Several dwellings within the strata development have already been completed and the dwelling on the subject site is currently under construction.
Background
The Tribunal is aware of the extensive history relating to the development of Strata Lot 2 and the adjoining 'sites', and does not consider it necessary to detail all of the historical events. However, it is considered appropriate to outline the context and findings of the Town Planning Appeal Tribunal (TPAT) decision in Adam v City of Fremantle [2004] WATPAT 131 (Adam).
Planning approval for the construction of a grouped dwelling on the subject site was granted by the respondent on 15 March 2004. This approval was subject to 10 conditions. Mr Adam lodged an appeal with TPAT in March 2004 against two conditions of the approval.
It would appear from [33] of Adam that the matter was assessed de novo. TPAT allowed the appeal and ordered the respondent to advise the appellant of its conditions of approval within 28 days of the decision. It further ordered that:
[I]n framing its conditions of approval the Respondent should have particular regard to the privacy and overlooking considerations relative to the adjoining [Strata] Lot 3, and that the Tribunal's comments in [65] and [66] of [the] judgment be taken into account.
Paragraphs [65] and [66] state:
65.There is no doubt that the property most affected by the proposed development is the adjacent [Strata] Lot 3 to the east of the subject site. The cone of vision diagrams brought into evidence are helpful in that they show the following:
(a)That if development was to proceed in accordance with the Respondent's decision that an adequate level of privacy could only be achieved between [Strata] Lots 2 and 3 with suitable screening. This appears to be confirmed in condition 3 of the approval which states:
'Upon practical completion of the balcony, a performancebased assessment of the need to install: (i) solid or obscured screening to a height of 1.65m on its eastern side, or (ii) a triangular planter to its north western corner, so as to prevent potential overlooking of the adjoining properties, shall be undertaken by the City, in consultation with the applicant and those neighbours, and the Director shall exercise his discretion as to whether or not the screen or planter is required, and if required, the applicant shall install a suitable screen or planter prior to occupation of the dwelling, to the satisfaction of Director Urban Management'.
(b)That if the proposed development was to proceed that a person standing on either the ground floor front deck level at RL 12.254 or the upper floor balcony at RL 15.36 could see into the front courtyard of [Strata] Lot 3, and a person sitting or standing on the upper floor balcony of the subject site could look down onto the upper floor balcony of [strata] Lot 3.
(c)That if the proposed development was to proceed that a person sitting on the upper floor balcony of [Strata] Lot 3 might just be able to see under the upper floor balcony on the subject site, and maintain a direct westerly view towards the ocean.
66.In the view of this Tribunal an adequate level of privacy and overlooking from the subject site into [Strata] Lot 3 could only be achieved by screening at both the lower floor deck level and the upper floor balcony. A chamfer of the upper floor balcony at its northeast corner would also assist in ameliorating overlooking from the subject site into [Strata] Lot 3.
It is important to appreciate that [65] only describes what can be ascertained from the cone of vision diagrams submitted into evidence and that [66] contains TPAT's views on the protection of privacy and overlooking of Strata Lot 3 from the subject site. The issue of preservation of views from Strata Lot 3 was addressed separately in [67] - [71] and [87] - [89] of Adam, and TPAT concluded, at [94], '[o]n the question of the preservation of views this Tribunal reiterates the decision in L Ramakrishnan v City of Fremantle [2004] WATPAT 89 that there is no guarantee to the protection of views'.
In accordance with TPAT's orders, the parties filed a 'Minute of Consent Orders' setting out the conditions of approval. The condition of relevance to this review is condition 1, which states:
Both the lower-level deck and the upper-level balcony shall be built with privacy walls or screens, to a height of 1.65m from their floor levels, for their entire eastern sides, to the satisfaction of the Director Urban Management. The applicant shall consult with the City to satisfy this condition. Plans and elevations showing full details of the design and materials shall be submitted to the City for this purpose and for approval as part of the building licence, prior to the commencement of construction of the dwelling.
The proposal
The application seeks retrospective approval to fill in the opening between the top of the screen wall on the lower deck area and the underside of the upper level balcony, which in effect, results in a continuous wall on the common site boundary with Strata Lot 3. The dimensions of the opening are estimated to be approximately 0.74 metres wide by 1.38 metres high.
Planning framework
The subject site is zoned 'Urban' in the Metropolitan Region Scheme and 'Mixed Use' with a permitted density of R25 under the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme).
The objectives for the 'Mixed Use' zone are set out in cl 4.2.1(e) of the Scheme which states:
Development within the mixed use zone shall:
i)provide for a limited range of light, service and cottage industry, wholesaling, trade and professional services, small scale retailing of goods and services (ie. showrooms, cafes, restaurants, consulting rooms), small scale offices and administration, entertainment, residential at upper levels and recreation,
ii)ensure future development within each of the mixed used zones is sympathetic with the desired future character of the area,
iii)ensure that development is not detrimental to the amenity of adjoining owners or residential properties in the locality, and
iv)conserve places of heritage significance the subject of or affected by the development.
Clause 4.2.2 of the Scheme requires that the zoning objectives of each zone be read in association with the relevant local planning area objectives cited in Sch 12 of the Scheme. The subject site is located within Local Planning Area 3 Subarea 3.3.6 - Eucla Court (LPA 3.3.6). The provisions relating to LPA 3.3.6 pertain specifically to height standards and provide the following restriction:
Despite the general height requirements, residential development shall be limited to a maximum external wall height of 7 metres and 10 metres to the roof ridge.
Clause 5.2 of LPS 4 requires that unless otherwise provided for in the Scheme, development of land for any of the residential purposes dealt by the Residential Design Codes of Western Australia (2008) (Codes) is to conform to the provisions of those Codes. Furthermore, cl 5.4.2 of LPS 4 states that:
Where residential development is proposed in non residential zones, except as provided for in the Scheme, the development shall conform with the Residential Design Codes including variations allowed for in the Codes and the general development requirements as outlined in Schedule 12 for that particular zone and any variation thereto.
The height of the wall is not in dispute and therefore the provisions of the Scheme relating to 'Variations to Height requirements' are of no relevance to this review.
Clause 8.4.1 of LPS 4 provides for the granting of planning approval to a development already commenced or carried out regardless of when it was commenced or carried out, if the development conforms to the provisions of the Scheme.
Clause 10.3.1 of LPS 4 provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, cl 10.2.1 of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•The aims, zoning objectives and provisions of the Scheme (subclause (a));
•The requirements of orderly and proper planning (subclause (b));
•The compatibility of a ... development within its setting (subclause (i))
•The preservation of the amenity of the locality (subclause (o));
•The plot ratio, site coverage, setbacks, height, landscaped area and parking accommodation (subclause (q));
•The height, position, form and materials of fences and walls (subclause (r));
•The way in which buildings relate to the street and adjoining lots, including their effects on ... the privacy, daylight and sunlight available to private open space and buildings (subclause (s));
•The relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal (subclause (w)); and
•Any other planning consideration (subclause zj)).
Retrospective approval
The application before the Tribunal requires retrospective planning approval. As observed above at [24], cl 8.4.1 of LPS 4 provides for the granting of planning approval to a development already commenced or carried out regardless of when it was commenced or carried out, if the development conforms to the provisions of the Scheme. The principles governing retrospective planning approval have previously been considered by the Tribunal in Burnett and Town of Cambridge [2006] WASAT 29 (Burnett) where the Tribunal observed (at [20] - [22]):
In Taddei v City of Stirling [2004] WATPAT 85, the predecessor body to this Tribunal observed as follows (internal headings omitted, at [19] [22]):
'It is important for the role of the Tribunal in determining an application for retrospective planning approval to be made clear. [The town planning scheme under consideration gives] power to approve development notwithstanding the fact the development has already been carried out [and the scheme] allows an approval to be issued where the application conforms with [the scheme].
In determining an appeal of this nature, the Tribunal is required to test the application against the legislative and policy framework of the Respondent in order to determine whether approval should be given. It is not for the Tribunal to take into consideration the lawfulness or otherwise of the developer's actions in constructing the building without the necessary approvals in place.
This position has been made clear by the Supreme Court [of Western Australia] in the decision of [Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36], an appeal from the [former] Tribunal. In this case, His Honour RobertsSmith J held ... [at 64]:
"... the fundamental position remains that a development application under the Scheme is an application for planning approval and the only considerations relevant to that are planning considerations, which relate to whether the proposed development is appropriate to the locality and in accordance with the objects of the Scheme and the objectives of the R Codes. The conduct or motivation of the proponent are not such considerations - and neither the Council nor the Tribunal is equipped to deal with allegations of that nature."
In the decision which gave rise to the [unsuccessful] appeal in [Low v Swan Cove Holdings Pty Ltd], Swan Cove Holdings Pty Ltd v City of Subiaco and Anor [2001] WATPAT 7, the Tribunal held that the onerousness of the appellant in being required to alter the existing development to comply with the relevant planning controls is irrelevant. There is no room for the "balance of convenience" to sway the Tribunal in determining the application [at [48]]:
"The issue must be solved only on planning grounds and an Appellant that comes to the Council or the Tribunal with a completed development must expect that the decision as to approval will be based entirely on planning grounds. The fact that the development is already in place must be disregarded."'
As expressed in Burnett, it is with these principles in mind that the Tribunal approaches this review.
Issues
Although initially there were nine issues identified, it is evident from the evidence of the respondent's expert witness and representative, Mr Simon Bain, that the only issue pressed by the respondent is the impact of the development on amenity of the locality. However, the applicant raised a number of issues concerning the application of the Codes which need to be addressed by the Tribunal in the determination of this matter.
Application of the Codes
The issues raised by the applicant included:
•whether the subject development is part of a boundary wall or a vertical screen;
•which provisions of the Codes are applicable to the subject development; and
•whether Strata Lots 4 and 5 constitute 'adjoining properties' within the meaning of the Codes and whether the provisions of the Codes are applicable to those strata lots.
What needs to be borne in mind in respect to this application in applying the Codes is that the subject site is a part of a larger 'grouped dwelling' development comprised of a number of strata lots. In this instance, it is important to consider the definitions of the words and expressions used in the Codes, in order to correctly apply the provisions.
At the outset, it is important to acknowledge that the term 'lot' is defined in Appendix 1 of the Codes 'for multiple or grouped dwellings, [as] the parent lot, inclusive of common area, on which the strata scheme relates as defined under the PD Act'. The term 'grouped dwelling' is defined as 'dwelling that is one of a group of two or more dwellings on the same lot ... and includes a dwelling on a survey strata with common property'. Therefore, in relation to this matter any reference to 'lot' in the provisions of the Codes is referring to the 'parent lot' and not individual strata lots. Given this, many of the provisions of the Codes will not strictly apply to the internal configuration and relationship between individual strata lots. Strata lots fall within the definition of 'site' in the Codes, which is defined as:
In the case of a group dwelling the area occupied by the dwelling together with any area allocated (whether by way of strata title or otherwise) for the exclusive use of benefit of that dwelling.
Given the above, it is important in applying the specific Elements of the Codes to give particular attention to the wording of provisions and the context in which they apply. For instance, the issue of 'adjoining property' has been raised in these proceedings in respect to Element 6.3 - Building set-back requirements (Element 6.3) and whether Strata Lots 4 and 5 are 'adjoining property' for the purpose of meeting the Performance Criteria. 'Adjoining property' is defined as:
Any lot:
•on which any dwelling for which provision is made in the Codes be constructed under the scheme; and
•which shares a boundary or portion of a boundary with a lot on which there is a proposed residential development site ...
In consequence of these definitions, it is determined that Strata Lot 3, 4 and 5 are not 'adjoining property' and therefore, the performance criteria set out in cl 6.3.1 P1 and cl 6.3.2 P2 of the Codes are not strictly applicable to this matter. This discord has previously been noted by the Tribunal in Moonvale Enterprises Pty Ltd and City of Joondalup [2008] WASAT 179 at [28], where the Tribunal observed that 'confusingly, there are no performance criteria for grouped dwellings on the same lot with the criteria specifically relating to adjoining properties'. Notwithstanding, in undertaking a merits based assessment of a proposed development relating to a 'grouped dwelling' development, due regard would need to be given to the planning principles embodied in these provisions to ensure that the internal interrelationship between strata lots within the parent lot do not suffer any adverse planning impacts from new development.
As identified by the respondent the main planning issue in dispute in these proceedings is the impact of the proposed development on the amenity of the adjoining and adjacent strata lots, namely Strata Lots 3, 4 and 5.
Amenity
The respondent contended that the subject portion of wall obscures views to the ocean from the adjoining dwelling (Strata Lot 3) and all the other dwellings to the east in this 'group' of dwellings. Photographs and diagrams were provided by the respondent in an attempt to demonstrate the loss of view from the other strata lots. The respondent asserted that the 'subject wall' obscures most of the view to the ocean.
The respondent submitted that the occupants/residents of the other four dwellings in the grouped housing development (being Strata Lots 3, 4, 5 and 6) had a reasonable expectation of obtaining a view of the ocean. This assertion was based on the premise that the original development proposal and approval was for four identical dwellings that were staggered on the site. The respondent further argued that part of the character of the area is the ocean views and there is no reason why the expectation would be for these views to be lost in the future.
The respondent considered the effects of the proposed development on the views to be significant for the following reasons:
•There is only a narrow corridor of ocean views to the west;
•This narrow corridor will be further narrowed by the approved development on the land on the northern side of Craig Street;
•The future view corridor will only be due west up Craig Street;
•There are no other views available from the group of dwellings. The only other aspect available is over the residential area to the north;
•The development was approved and constructed with identical dwelling designs and staggered so each dwelling could take advantage of the narrow corridor of view; and
•The views are significant to the applicant as the subject development projects further forward to the north to take advantage of the ocean views (to the detriment of the other dwellings to the east).
The respondent also argued that the proposed development is incompatible with its setting in that it does not respect the design of the original four grouped dwellings or the view corridor that all these dwellings share and is thus contrary to orderly and proper planning.
The submitters were given leave to make written submissions under s 242 of the PD Act, but limited to the effect of the additional section of screening wall on Strata Lot 2 on their respective dwellings. The submission received exceeded the bounds of the leave and included a historical background to the development of the 'grouped dwellings' and comments and opinions on the previous decision and orders of TPAT. The Tribunal in its decision will only address the issues raised in the submission relating to the effect of the additional section of screening wall on Strata Lot 2 on their respective dwellings.
The following impacts of the wall were identified in the submission:
•The general amenity of Strata Lot 3 is adversely affected by the wall;
•The wall is not in sync with the other houses;
•The wall dominates and creating a 'sense of enclosure' to the balcony of Strata Lot 3;
•The wall casts a shadow and daylight to Strata Lot 3 is diminished;
•Loss of outlook and views to the ocean and Rottnest Island from the balcony area and the sitting room within the dwelling on Strata Lot 3; and
•The value of the property is reduced.
The applicant asserted that only the original approved plans could form the basis upon which reasonable expectation about future development could be formed. The applicant argued that:
The drawings show, relevantly, that [Strata] Lot 2 enjoyed the benefits of being fully screened on its east side (adjoining [Strata] Lot 3), with a solid boundary wall from ground to roof level, for the full depth of the balcony/deck. At the same time it enjoyed a direct westward view, as did [Strata] Lot 1. [Strata] Lot 3, by contrast, did not enjoy any direct westward view.
The applicant submitted that Mrs Rossiter could not, at the time of purchase of her lot, have had a reasonable expectation of any view across Strata Lot 2, whereas he did have a reasonable expectation of having complete visual privacy, by way of an extension of the main wall of the dwelling, from the adjoining building, including from its balcony.
The applicant also submitted that if the additional section of screening wall were removed:
(i)there would be significant overlooking between the lower deck area of [Strata] Lot 2 and the balcony of [Strata] Lot 3, to the detriment of the privacy of both;
(ii)the additional wall area (approximately 1 sq. metre) would make a negligible difference to the mass of wall and sense of enclosure;
(iii)the potential for additional views of the ocean would be extremely limited, to a narrow horizontal and vertical view path, and no additional view of Rottnest Island at all would be possible (because of the screen required to the remainder of the deck);
(iv)there would be only a negligible increase in light (due to the opening being shaded by the adjacent deck in any event) and the negligible increase in direct sun would occur only at a time of year and day when it would be unwelcome; and
(v)the finish of the wall is required to be to the satisfaction of the neighbour; it will not be bare concrete as at present.
He concluded that the removal of the section of screening wall would result in a negligible gain in amenity to Strata Lot 3 in relation to view, but a very significant loss in amenity, due to loss of privacy, for both Strata Lots 2 and 3.
Tribunal's consideration
As previously stated at [32], due regard would need to be given to the planning principles embodied in the Codes to ensure that the internal interrelationship between strata lots within the parent lot do not suffer any significant adverse planning impacts from new development. A number of the matters identified in cl 10.2.1 of LPS 4 also highlight the need to address the relationship between adjoining sites.
The objective of Element 6.3 is '[t]o ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy and overshadowing on adjoining properties'. One of the performance criteria specified in cl 6.3.2 - Buildings on boundary of the Codes is that buildings built up to boundaries do not have any significant adverse effect on the amenity of the adjoining property. Further, cl 10.2.1(o) of LPS 4 refers to 'the preservation of the amenity of the locality'. 'Amenity' is not defined in the Codes but is defined in Sch 1 of LPS 4 as '... all those factors which combine to form the character of an area and include the present and likely future amenity'. It follows from this definition that the Tribunal is required to consider the proposed development having regard both the present and likely future amenity.
The Tribunal is of the view that the impacts of the additional section of screening wall are confined to the subject site and Strata Lot 3. Although the evidence of Mr Bain suggests that the amenity of Strata Lots 4 and 5 are adversely affected by the 'subject wall', the Tribunal does not agree as the only possible impact is that the additional section of screening wall is visually apparent from the balconies of those two strata lots. This impact is considered to be inconsequential.
The diagrams provided by both the applicant and the respondent show that the view and outlook from a sitting position within a certain section of the balcony on Strata Lot 3 will be affected by the development. The diagrams also reveal that privacy between Strata Lot 2 and Strata Lot 3 will be improved. These findings were confirmed by the view.
It is clear that the additional section of screening wall will ensure a higher level of amenity to the residents of Strata Lot 2 as their level of privacy will be enhance by reducing the degree of overlooking from the balcony area of Strata Lot 3. In contrast, the amenity of Strata Lot 3 will be reduced as the additional section of screening wall will marginally reduce the view of the ocean and outlook from the balcony area, and will have a minimal overshadowing impact for limited times of the year. However, the level of privacy to the balcony of Strata Lot 3 will be enhanced.
As to the arguments concerning reasonable expectation about future development of the strata lots, the Tribunal prefers the evidence of Mr Adam. The 1999 approval plans submitted into evidence indicated that there would be screening of the balcony areas of each grouped dwelling to reduce overlooking from the site to the east thereby restricting views to the west from the balcony area of Strata Lot 3. Although it was agreed that the final design of the grouped dwellings deviated from the original plans and that three of the grouped dwellings were built in a similar vein, this fact should not have lead to the expectation that retaining views at the cost of privacy for Strata Lot 2 is reasonable. The degree of privacy sought by the owner of Strata Lot 2, in protecting the deck area, is considered to be reasonable.
On balance, the Tribunal considers that the application should be approved for the following four reasons. Firstly, the view that is to be lost from the balcony area of Strata Lot 3 is not the only view of the ocean that can be observed from that area. However, it is clear from the evidence of both witnesses that the likelihood of retaining the present view corridor to the west is uncertain given approved developments on the northern side of Craig Street and at Leighton Beach. Secondly, the view is obtained through what is effectively another dwelling's private open space. Thirdly, the bulk is fairly insignificant with minimal overshadowing impact. Fourthly, there is a genuine privacy benefit to Strata Lot 2 evidenced by the fact that the view is obtained through their private open space.
Conditions
As required by direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considers that approval of the application, subject to conditions, is appropriate. Two conditions were submitted as follows:
1.The development hereby permitted shall take place in accordance with the plans dated 6 September 2007.
2.The boundary walls shall be finished in a colour and material that is compatible with the existing colours and finishes to the satisfaction of the Chief Executive Officer.
The applicant objected to proposed condition 1 as he considered the condition was too broad and could lead to the possibility of further objections by neighbours on unrelated matters. He suggested that the wording be revised to read, 'The wall shall be as constructed at the date of the Tribunal decision'.
In normal circumstances, the Tribunal would be prepared to impose a condition such as the one suggested by the City, but in light of the history of disputes between the neighbours the Tribunal is concerned that such a condition may spark further dispute and potentially litigation about compliance. In any case, the issue that has been addressed in this decision is whether the 'as constructed' structure is acceptable. Given the findings of the Tribunal, the application should be approved 'as constructed' and a condition imposed on the approval requiring the applicant to lodge 'as constructed' drawings of the subject portion of wall within 28 days of the Tribunal's decision.
In relation to proposed condition 2, the applicant considered it to be redundant as a similar condition is imposed on the planning approval for the house as a whole.
The wording of proposed condition 2 refers to 'boundary walls', which would include elements that are not part of this application. It would be unreasonable for the Tribunal to impose a condition that is 'un-related' to the application (cf Kellet and Town of Vincent [2007] WASAT 155 and Booth and Town of East Fremantle [2008] WASAT 155). However, it would not be unreasonable for the Tribunal to require that the section of the wall that is part of this application to be compatible in finish and colour with the existing screen walls of the lower deck area and the upper level balcony. It is not necessary to require that the material of the portion of wall be part of the condition as it is already constructed.
Costs
Mr Adam seeks an order that the City pay his costs of the proceedings for the following reasons:
(i)[T]o send a signal to the Council that it should make decisions on planning merit, not by way of pandering to the unfounded objections of the neighbours; and
(ii)[N]ominal recompense to the applicant.
The respondent did not make any submissions in relation to this matter.
Section 87(1) of the SAT Act provides that, unless otherwise specified in that Act, the enabling Act or an order of the Tribunal, parties bear their own costs in Tribunal proceedings. However, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act. The relevant enabling Act, the PD Act, does not restrict the discretion conferred by s 87(2) of the SAT Act.
However, the Tribunal's established practice in relation to the exercise of its discretion as to costs in review proceedings is that normally each party should bear its own costs of the proceedings: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206.
The City's reasons for its decisions have already been set out. There clearly was a planning basis for the City's refusal, that planning basis being amenity concerns. Although the Tribunal does not consider that the correct and preferable decision in this case accords with the City's decision, it accepts that there was a genuine merit assessment of the application by the City. The Tribunal does not consider that it should depart from its usual practice in relation to costs in the circumstances of this case and that each party should pay its own costs.
Orders
For the following reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse to retrospectively approve a balcony and deck screen wall at No 2/79 Thompson Street, North Fremantle is set aside and a decision is substituted that retrospective approval be granted for the 'as constructed' additional section of screening wall between the top of the screen wall on the lower deck area and the underside of the upper level balcony at No 2/79 Thompson Street, North Fremantle, subject to the following conditions:
i)'As constructed' drawings are to be lodged with the City of Fremantle within 28 days of the State Administrative Tribunal's decision.
ii)The additional section of wall shall be of a finish and in a colour that is compatible with the existing screen walls of the lower deck area and the upper level balcony to the satisfaction of the Chief Executive Officer.
3.Each party is to pay its own costs of the proceedings.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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