Alessi and City Of Wanneroo - [2010] WASAT 188

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ALESSI and CITY OF WANNEROO [2010] WASAT 188

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 21 DECEMBER 2010

FILE NO/S: DR 207 of 2010

BETWEEN: ANTHONY ALESSI
ANTOINETTE ALESSI
Applicants
AND
CITY OF WANNEROO
Respondent

Catchwords:

Ministerial referral of representations to Tribunal for report and recommendations under Planning and Development Act 2005 (WA) s 211 Retaining wall ranging between 0.9 metre and 3.9 metres above ground level of adjoining property constructed to create level subdivisional lot Condition of subdivision approval required that 'the finished ground levels at the boundaries of the lot(s) the subject of this approval are to match or otherwise coordinate with the existing and/or proposed finished ground levels of the land abutting' Whether development approval required for retaining wall under local planning scheme Whether subdivision approval is to be taken to be approval by the responsible authority under the local planning scheme for the retaining wall Whether the retaining wall is '[work] necessary to enable subdivision of the land that [is] ... required by the Commission to be carried out as a condition of approval of the plan of subdivision' under s 157(1) of the Planning and Development Act 2005 (WA) Whether respondent has failed to enforce or implement effectively the observance of the local planning scheme Whether the Tribunal should recommend to the Minister to order the local government to give a direction to the subdivider to demolish the retaining wall Dwelling substantially erected by new owner on subdivisional lot

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 4.4.3, cl 6.1.1, cl 6.1.3, cl 6.1.3(j)
Planning and Development Act 2005 (WA), s 135, s 157, s 157(a), s 157(b), s 157(1), s 157(1)(b), s 211, s 211(1), s 211(2), s 211(3), s 214, s 214(3), s 215(1)
Residential Design Codes of Western Australia (2002)
Residential Design Codes of Western Australia (2008)
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

The Tribunal reports to the Minister that the City of Wanneroo has not failed to enforce or implement effectively the observance of the City of Wanneroo District Planning Scheme No 2
The Tribunal recommends that the Minister should dismiss the representations made by Mr and Mrs Alessi

Category: B

Representation:

Counsel:

Applicants: Mr JCW Skinner
Respondent: Mr CA Slarke

Solicitors:

Applicants: Jackson McDonald
Respondent: McLeods

Case(s) referred to in decision(s):

Drake and City of South Perth [2005] WASAT 271
Lafou Pty Ltd and Town of Claremont [2009] WASAT 187

REPORT AND RECOMMENDATIONS OF THE TRIBUNAL:

Summary of Tribunal's report and recommendations

This proceeding involved a referral by the Hon John Day MLA, Minister for Planning; Culture and the Arts, to the Tribunal for its report and recommendations pursuant to s 211(2) of the Planning and Development Act 2005 (WA) of representations made to the Minister by Mr and Mrs Alessi. Mr and Mrs Alessi argued in their representations that the City of Wanneroo had failed to enforce or implement effectively the observance of the City of Wanneroo District Planning Scheme No 2 in relation to the erection of a retaining wall that abuts part of one of their boundaries. The retaining wall was erected to contain fill placed on the adjoining property in order to create level subdivisional lots in relation to the road. The retaining wall ranges in height from 0.9 metre to 3.9 metres above ground level at Mr and Mrs Alessi's property and is located within 1 metre of their house.
The Tribunal reported to the Minister that the retaining wall did not require development approval under the City of Wanneroo District Planning Scheme No 2 in consequence of both s 157(1)(b) of the Planning and Development Act 2005 and cl 6.1.3(j) of the City of Wanneroo District Planning Scheme No 2, and that the City of Wanneroo did not therefore fail to enforce or implement effectively the observance of the Scheme.
Section 157(1)(b) of the Planning and Development Act 2005 states that a subdivision approval 'is to be taken to be approval by the responsible authority under [a] planning scheme of the carrying out of works necessary to enable the subdivision of the land that are … required by the Commission to be carried out as a condition of approval of the plan of subdivision'. Clause 6.1.3(j) of the City of Wanneroo District Planning Scheme No 2 states that development approval is not required under the Scheme if the development consists of 'any development works required to be carried out as a condition of subdivision ... approval granted by the Commission'.
The ground level of Mr and Mrs Alessi's property and the adjoining property falls sharply from the road. The subdivision application of the adjoining property was put forward on the basis that the subdivisional blocks would be level in relation to the road. A condition of subdivision approval expressly required the land to be filled to the satisfaction of the Western Australian Planning Commission. Another condition of subdivision approval required that the finished ground levels at the boundaries of lots 'are to match or otherwise coordinate with the existing and/or proposed finished ground level of the land abutting'.
In the circumstances, the latter condition necessarily required the construction of a retaining wall in the location and of the nature and scale that has been constructed abutting Mr and Mrs Alessi's property in order for the finished ground level of the adjoining subdivisional lot to be level with the road. Furthermore, it is implicit in the latter condition that a retaining wall in the location and of the nature and scale that has been constructed would be required in order to construct the approved subdivision, having regard to the topography, accepted good residential subdivision practice for the subdivider to create flat developable lots, and servicing requirements for new subdivisional lots (particularly for reticulated sewerage).
The Tribunal therefore recommended that the Minister should dismiss Mr and Mrs Alessi's representations.

Introduction

This proceeding involves a referral by the Hon John Day MLA, Minister for Planning; Culture and the Arts (Minister), to the Tribunal for its report and recommendations pursuant to s 211(2) of the Planning and Development Act 2000 (WA) (PD Act) of representations made to the Minister by Mr and Mrs Alessi on 30 March 2010 (representations). Section 211(1) of the PD Act enables '[a] person aggrieved by … the failure of a local government to enforce or implement effectively the observance of a local planning scheme … [to] make representations to the Minister'. Section 211(2) of the PD Act states:
The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.
Mr and Mrs Alessi argued in their representations that the City of Wanneroo (City or Council) has failed to enforce or implement effectively the observance of the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme) in relation to the erection of a retaining wall (retaining wall) at the eastern boundary of No 173 (Lot 301) Landsdale Road, Landsdale (Lot 301) which abuts the southwestern boundary of Mr and Mrs Alessi's property at No 177 (Lot 300) Landsdale Road, Landsdale (Lot 300). Relative to the former ground level of Lot 301 and to the current ground level of Lot 300, the retaining wall ranges in height from approximately 0.9 metre adjacent to Landsdale Road to the south to approximately 3.9 metres at the northeastern corner of Lot 301, which is situated about half way along the western side boundary of Lot 300. The retaining wall is located less than 1 metre from Mr and Mrs Alessi's dwelling on Lot 300. The retaining wall was constructed in order to retain fill placed on Lot 301 as part of subdivisional works in order to create a single level across the whole of Lot 301 similar to the level of Landsdale Road.
Section 211(3) of the PD Act states:
For the purposes of making a report and recommendations on a referral under subsection (2), Part 14 applies with such modifications as may be necessary, as if the referral were an application for review.
The Tribunal received the referral of the representations from the Minister on 9 July 2010. On that day, the Tribunal listed the matter for a directions hearing on 28 July 2010 and requested the City to advise the Tribunal of the name and address of the registered proprietor of the land that is now Lot 301, and to advise that person of the proceeding and of the time, date and place of the directions hearing. The Tribunal requested both parties to advise whether they consented to the Tribunal providing the Minister's correspondence and the representations to the owner of Lot 301.
On 15 July 2010, the City advised the Tribunal that Lot 301 was previously owned by Peci Properties Pty Ltd (Peci) and that the current registered proprietors of Lot 301 are Mr Leon and Mrs Melissa Wilkinson. The City advised that Mr and Mrs Wilkinson had 'recently commenced the construction of a single dwelling on this lot'. Both the City and Mr and Mrs Alessi consented to the Tribunal providing a copy of the Minister's correspondence and the representations to Peci and Mr and Mrs Wilkinson.
On 23 July 2010, the Tribunal provided a copy of the Minister's correspondence and the representations to Peci and Mr and Mrs Wilkinson, and advised them of the time, date and place of the directions hearing should they wish to attend.
On 27 July 2010, Mrs Wilkinson telephoned the Tribunal to advise that she and her husband had received the documents. Mrs Wilkinson said that she and her husband did not wish to be involved in the proceeding but would like to be advised of the outcome. Peci did not contact the Tribunal or attend the directions hearing.
At the directions hearing on 28 July 2010, the Tribunal programmed the matter for determination on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). The Tribunal made orders requiring the parties to file an agreed statement of facts and an agreed bundle of documents, witness statements, written submissions and written submissions in reply. The Tribunal also directed that a copy of each of the documents filed in accordance with its orders was to be provided to Mr and Mrs Wilkinson.
On 21 September 2010, the parties filed an agreed statement of facts and an agreed bundle of documents. On 6 October 2010, the City filed a witness statement from Mr Michael Hudson, a town planner and the City's Special Projects Planner. On 8 October 2010, Mr and Mrs Alessi filed witness statements from Mr Alessi and Mr Stephen Allerding, a consultant town planner. In late October and early November 2010, the parties each filed written submissions and written submissions in reply.

Factual background

Mr and Mrs Alessi, together with Mario Casella & Sons Builders Pty Ltd, were formerly the owners of Lot 57 Landsdale Road, Landsdale (Lot 57). Lot 57 had an area of 2.2486 hectares. In 2006, the former owners sold Lot 57 to Peci subject to the right of Mr and Mrs Alessi to retain ownership of the part of Lot 57 upon which their dwelling is located.
Peci subdivided Lot 57 to create Lot 9006 on Deposited Plan 50153 (Lot 9006), which had an area of 2.1071 hectares, and Lot 300, which has an area of 1,415 square metres. Peci then transferred ownership of Lot 300 to Mr and Mrs Alessi.
Lot 9006 is zoned Urban Development under DPS 2 and the Scheme requires that a structure plan be prepared and adopted prior to the subdivision or development or land in the zone. Lot 9006 and other properties are within the area subject to the East Wanneroo Cell 5 Agreed Structure Plan No 7 (Structure Plan). The Structure Plan designates a residential density coding of R20.
In October 2006, Peci lodged an application with the Western Australian Planning Commission (Commission) under s 135 of the PD Act to subdivide Lot 9006 to create 29 residential lots. The subdivision application was consistent with the residential coding designated by the Structure Plan. The subdivision application proposed two lots with a frontage to Landsdale Road to the south located to the west of the southern half of Lot 300. The lot immediately adjoining the southern half of the western boundary of Lot 300 was originally shown as Lot 129 but then became Lot 301, and the lot to the immediate west of Lot 301 was originally shown as Lot 128 but became Lot 302 (Lot 302). Lot 301 and Lot 302 each have frontages of approximately 16.8 metres to Landsdale Road and an area of approximately 504 square metres.
The subdivision plan contained contours showing that Lot 300 fell by over 5 metres from approximately 66 metres AHD adjacent to Landsdale Road to the south to between 60 metres AHD and 61 metres AHD at the northern boundary of that lot, over a distance of approximately 60 metres, and that the lots that subsequently became Lot 301 and Lot 302 then fell by approximately 3 metres from approximately 66 metres AHD adjacent to Landsdale Road to the south to approximately 63 metres AHD, over a distance of 30 metres. Because of the slope, Mr and Mrs Alessi's dwelling is a split level house with a single storey element fronting Landsdale Road and a double storey element behind.
The Commission referred the subdivision application to the City for its response. In its letter to the Commission dated 27 November 2006, the City raised three issues in relation to the application, including the following:
The proposal will result in side boundary fences being located the full length of the local road that has a school site located on the adjoining Lot 58. For reasons of residential amenity and neighbourhood surveillance, it would be far preferable to have residential lots fronting the school site road. In this context, a redesign would be required, notwithstanding that this local road is the subject of a joint access arrangement as stated above.
By letter dated 8 January 2007, Peci responded to the issues raised in the City's letter. Peci's response included the following:
The Council has concerns that the proposed subdivision will result in side boundary fences being located for the full length of the local road adjoining the proposed school site.
The subdivision was designed in this manner for two reasons:
…
(b)the site slopes dramatically from front to rear by approximately 14m and orientating the block North to South (as per our submission) will result in level blocks in relation to the road and minimise retaining walls. Orienting the lots East to West so as to face the school site will result in increased retaining walls and very steep driveways. (Emphasis in bold added)
The City agreed with Peci's justification for the proposed subdivision layout and, by letter dated 29 January 2007, advised the Commission that the Council supported the subdivision application subject to conditions including the following:
12.The final ground levels within the application area to be coordinated with those of the abutting section of Landsdale Road and any adjacent developments to the specification and satisfaction of the City of Wanneroo.
13.The land being filled and/or drained at the subdivider's cost to the specification and satisfaction of the City of Wanneroo and any easements and/or reserves necessary for the implementation thereof, being provided free of cost to the City.
On 8 March 2007, the Commission granted approval for the proposed subdivision subject to conditions which were to be fulfilled prior to the endorsement of a deposited plan in accordance with the submitted subdivision plan. The conditions included the following:
12.The finished ground levels at the boundaries of the lot(s) the subject of this approval are to match or otherwise co-ordinate with the existing and/or proposed finished ground levels of the land abutting. (Local Government) (Condition 12)
13.The land being filled and/or drained at the subdivider's cost to the satisfaction of the Western Australian Planning Commission and any easements and/or reserves necessary for the implementation thereof, being granted free of cost. (Local Government) (Condition 13)
The subdivision approval stated:
The agency/authority or local government noted in brackets at the end of the condition(s) identify the body responsible for providing written advice confirming that the [Commission's] requirement(s) outlined in the condition(s) have been fulfilled.
Relevantly, the City was the authority responsible for providing written advice to the Commission that the requirements of condition 12 and condition 13 of the subdivision approval were fulfilled. However, the subdivision approval stated that '[t]he condition(s) of this approval are to be fulfilled to the satisfaction of the [Commission].'
By letter dated 13 July 2007 to Peci's consultant engineer, the City granted 'engineering approval' for various works associated with the subdivision, subject to conditions including:
All submissions containing structures or entry statements will require a Development Application (DA) and a Building Licence (BL). Retaining walls exceeding 450 mm require a BL, retaining walls exceeding 500 mm in height will also require a Residential Design Code Variation plus neighbour consultation, and retaining walls exceeding 3 m in height require full Council approval.
On 18 September 2007, the Council authorised approval of various retaining walls proposed for the subdivision, to a maximum height of 4.1 metres, subject to a building licence being obtained before the commencement of construction. One of these approved retaining walls was the retaining wall that is the subject of the representations.
On 1 November 2007, the City issued a building licence for the construction of the retaining wall. The approved building licence plan shows that Lot 301 and Lot 302 each have a constant level of 66.93 metres AHD.
The retaining wall was subsequently constructed.
Clause 6.1.1 of DPS 2 states:
The Council's Planning Approval is required for any development on or partly on any land zoned or reserved under the Scheme other than development referred to in subclause 6.1.3, and with those exceptions no person shall commence or carry out any development unless the Council's approval has been obtained.
Clause 6.1.3 of DPS 2 states, in part, as follows:
Except in the case of … the Urban Development Zone … in respect of land for which no Agreed Structure Plan is in place, the Council's prior Planning Approval on land zoned by the Scheme is not required if the development consists of:
…
(j)any development works required to be carried out as a condition of subdivision, strata or survey subdivision approval granted by the Commission.
The City has not received any:
(a)application for development approval pursuant to cl 6.l.1 of DPS 2; or
(b)application for 'Codes approval' pursuant to the Residential Design Codes of Western Australia (2002) or Residential Design Codes of Western Australia (2008) (Codes),
in respect of the retaining wall.
On 22 April 2008, Mr and Mrs Alessi's solicitors wrote to the City to complain about the retaining wall. The City, Mr and Mrs Alessi, Peci and Peci's consultant engineer subsequently conferred over an extended period with a view to addressing Mr and Mrs Alessi's complaint, but no resolution was reached. On 11 December 2009, the City's solicitors wrote to Mr and Mrs Alessi's solicitors advising that the City was of the view that the history of the matter left it unable to either prosecute Peci or to issue a direction pursuant to s 214(3) of the PD Act. The letter also stated that 'the City does not believe that it has grounds to continue to refuse to recommend clearance of the conditions of [the subdivision approval] to enable a certificate of title to be issued for the lots in question'. On 18 January 2010, the City wrote to Peci to confirm that that City had 'cleared' all relevant conditions of the subdivision, including condition 12.

Lot 301 and Lot 302 were sold by Peci to third parties. In particular, on 23 March 2010, Mr and Mrs Wilkinson became the registered proprietors of Lot 301.
As noted earlier, on 30 March 2010, Mr and Mrs Alessi made the representations to the Minister (in the form of a letter from their solicitors).
Mr and Mrs Wilkinson subsequently commenced the construction of a dwelling on Lot 301 and have now substantially completed their dwelling.

Issues for consideration

The following four issues arise for consideration in this matter:
1)Does the retaining wall require development approval under DPS 2?
2)If the answer to 1) is 'yes', has development approval been granted for the retaining wall under DPS 2?
3)Has the City failed to enforce or implement effectively the observance of DPS 2?
4)If the answer to 3) is 'yes', what recommendations, if any, should the Tribunal make to the Minister in relation to enforcement of the observance of DPS 2?

The Tribunal will consider these issues in turn.

Does the retaining wall require development approval under DPS 2?

Section 157 of the PD Act states as follows:
(1)Subject to subsection (2), when the Commission has approved a plan of subdivision of any land to which a planning scheme relates, that approval is to be taken to be approval by the responsible authority under the planning scheme of the carrying out of works necessary to enable the subdivision of the land that are
(a)shown on the plan of subdivision; or
(b)required by the Commission to be carried out as a condition of approval of the plan of subdivision.
(2)When approving a plan of subdivision the Commission may determine that the approval is not to be taken under subsection (1) to be approval by the responsible authority under the planning scheme of the carrying out of works specified in the determination, and the determination has effect accordingly.
Furthermore, as noted earlier, cl 6.1.3(j) of DPS 2 relevantly states that development approval is not required under the Scheme if the development consists of:
… any development works required to be carried out as a condition of subdivision, strata or survey strata subdivision approval granted by the Commission.
The City argued as follows:
The effect of section 157 of the [PD] Act and, or alternatively, clause 6.1.3(j) of the Scheme, is that no planning approval is required for the construction of the [retaining wall] and consequently the City cannot be said to have failed to effectively implement or enforce the observance of the Scheme. …
The need for retaining walls as a consequence of the topography of Lot 9006 is raised in the subdivider's letter to the Department of Planning and Infrastructure of 8 January 2007 by way of response to the City's initial subdivision referral response of 27 November 2006. It can reasonably be assumed that the [Commission] must have anticipated the need to develop retaining walls as a consequence of the subdivision approval and, in particular, in order to satisfy the requirements of Condition 12.
Having regard to:
(a)the topography of the site and the lot layout approved by the [Commission];
(b)the fact that it is standard contemporary subdivision practice to create level lots and for the subdivider to carry out the cutting, filling and retaining necessary to create level lots; and
(c)servicing requirements for the new subdivisional lots (in particular for reticulated sewerage),
it is implicit in Condition 12 that retaining walls were required to be constructed to fulfil the condition and, in particular, that a retaining wall on the western boundary of Lot 300 would be required. …
As the construction of the [retaining wall] was a work necessary to enable the subdivision of Lot 9006 which was required by the [Commission] to be carried out as a consequence of Condition 12, section 157(1)(b) of the [PD] Act applies and the [Commission's] approval is to be taken to be the approval of the City under the Scheme for the carrying out of that work.
Similarly, as the [retaining wall] was a development work required to be carried out in order to satisfy Condition 12 of the subdivision approval granted by the [Commission], clause 6.1.3(j) of the Scheme has the effect that planning approval under the Scheme is not required for the [retaining wall].
The City relied on the evidence of Mr Hudson that:
… because of [the] significant change in levels, a fairly significant amount of cutting and filling, and therefore retaining, was inevitable for any subdivision [of Lot 301] …
and that:
It is accepted good residential subdivision practice for the subdivider to create flat developable lots within which the necessary cutting and filling has been carried out, before on-selling to purchasers. While it is possible to create and sell lots which have not been retained, that can lead to undesirable development outcomes where the purchasers are left to carry out cutting, filling and retaining themselves. As well as practical problems in doing so, there is a risk that leaving the cutting, filling and retaining to individual landowners will not achieve a consistent and co-ordinated set of levels.
Mr and Mrs Alessi argued as follows:
The [retaining wall] is not shown on the plan of subdivision approved by the Commission, so no deemed planning approval arises under s 157(a) of the PD Act.
The [retaining wall] is not 'a work necessary to enable the subdivision of the land that [is] … required by the Commission to be carried out as a condition of approval of the plan of subdivision' (our emphasis) for the purposes of s 157(b) of the PD Act.
Neither is the [retaining wall] a development that is 'required to be carried out as a condition of subdivision approval' (our emphasis) for the purposes of cl 6.1.3(j) of DPS 2.
There is no condition of the subdivision approval for Lot 9006 that expressly requires the construction of the [retaining wall] or refers to construction of the [retaining wall].
The only relevant condition of the subdivision approval is Condition 12, which requires that the finished ground levels of lots are to match or otherwise coordinate with the existing and/or proposed finished levels of the land abutting'. It is accepted, having regard to the topography of the land the subject of the subdivision approval, that some retaining walls may inevitably have been required in order to comply with this condition and those retaining walls may accordingly be regarded as works that are necessary to enable the subdivision of the land and that are (by implication) required by the Commission to be carried out by Condition 12. However, Condition 12 cannot reasonably be interpreted as anticipating and providing for the construction of a retaining wall, not shown on the plan of subdivision, in excess of 3.9m in height located within 1m of an existing dwelling on the basis that this 'matches or coordinates' with the finished level of the adjoining land'.
Mr and Mrs Alessi also submitted that:
In order to comply with the requirement of cl 4.4.3 of DPS 2 that the [retaining wall] conform[s] with the provisions of the [Codes], the [retaining wall] required the exercise of discretion under the [Codes] to determine compliance with the relevant Performance Criteria and, accordingly, a 'Codes Approval' under cl 3.2 of the [Codes].
Clause 4.4.3 of DPS 2 states:
Unless otherwise provided for in this Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.
The Tribunal considers that the retaining wall does not require development approval under DPS 2 in consequence of both s 157(1)(b) of the PD Act and cl 6.1.3(j) of DPS 2. As noted earlier, the subdivision plan showed the significant fall from Landsdale Road to the north over Lot 300 and the adjoining proposed lots to the west. As also noted earlier, the subdivision application was put forward by Peci for approval on the basis that 'orientating the block North to South (as per our submission) will result in level blocks in relation to the road … '. As a consequence of the significant fall in the land and the intention to create 'level blocks in relation to the road', as Mr Hudson said, 'a fairly significant amount of cutting and filling, and therefore retaining, was inevitable … '. Condition 13 of the subdivision approval expressly required the land to be filled to the satisfaction of the Commission and condition 12 of the subdivision approval necessarily required the construction of a retaining wall in the location and of the nature and scale that has been constructed at the eastern boundary of Lot 301 in order to retain the fill to create level blocks for Lot 301 and Lot 302 in relation to the road. Otherwise, it would not have been possible to construct a lot adjoining Lot 300 level with Landsdale Road. The only way in which the finished ground level of Lot 301 could be level with Landsdale Road and 'coordinate with the existing … finished ground levels of the land abutting' at Lot 300 (as required by condition 12 of the subdivision approval) is by means of construction of a retaining wall in the location and of the nature and scale as the retaining wall the subject of the representations.
Furthermore, as the City submitted, having regard to:
(a)the topography of the site and the lot layout approved by the Commission;
(b)the fact that it is 'accepted good residential subdivision practice for the subdivider to create flat developable lots within which the necessary cutting and filling has been carried out, before onselling to purchases', to quote Mr Hudson; and
(c)servicing requirements for the new subdivisional lots (in particular for reticulated sewerage),
it is implicit in condition 12 of the subdivision approval that a retaining wall in the location and of the nature and scale that has been constructed abutting the western boundary of Lot 300 would be required in order to construct the approved subdivision.
The retaining wall is, therefore, a '[work] necessary to enable the subdivision of the land that … [was] required by the Commission to be carried out as a condition of the approval of the plan of subdivision', namely, by condition 12 of the subdivision approval, for the purposes of s 157(1)(b) of the PD Act. Furthermore, the retaining wall is a 'development [work] required to be carried out as a condition of the subdivision … approval granted by the Commission', namely, condition 12 of the subdivision approval, for the purposes of cl 6.1.3(j) of DPS 2.
Clause 4.4.3 of DPS 2 does not relevantly require that the retaining wall must conform with the provisions of the Codes for two reasons. Firstly, as the retaining wall was a work necessary to enable the subdivision of the land that was necessarily required by the Commission to be carried out to fulfil condition 12 of the subdivision approval, the Commission's approval 'is to be taken to be approval by the responsible authority under the planning scheme for the carrying out' of that work under s 57(1) of the PD Act. Secondly, cl 4.4.3 of DPS 2 is expressly subject to other provisions of the Scheme, including cl 6.1.3(j) of the Scheme. The requirement of cl 4.4.3 of DPS 2, that development for residential purposes dealt with by the Codes is to conform to the provisions of the Codes, only applies in cases where development approval is required for that development under the Scheme (unless a relevant provision of the Scheme were to provide otherwise, which is not the case in relation to the retaining wall).
It follows that the retaining wall does not require development approval under DPS 2.

Has development approval been granted under DPS 2?

In light of the earlier analysis, this issue does not arise for consideration.

Has the City failed to enforce or implement effectively the observance of DPS 2?

In light of the earlier analysis, the City has not failed to enforce or to implement effectively the observance of DPS 2. As development approval was not required for the construction of the retaining wall, there has been no breach of the observance of DPS 2.
As the City said in its submissions:
If the City is to be criticised it should only be for the fact that the engineer's standard letter incorporating standard 'conditions' relating to subdivisional retaining walls was inconsistent with the City's practice to accept that retaining walls created in order to satisfy a condition of subdivision approval did not require planning consent. The City has taken steps to correct that inconsistency.

What recommendations, if any, should the Tribunal make to the Minister in relation to enforcement of the observance of DPS 2?

In consequence of the earlier analysis, this issue does not arise for consideration. However, for completeness, the Tribunal notes that, in the circumstances of this case, even if development approval had been required, but had not been obtained, for the construction of the retaining wall under DPS 2, and, consequently, had the City failed to enforce or implement effectively the observance of DPS 2, the Tribunal would not have recommended that the Minister take any action by way of order against the City under the PD Act.
Mr and Mrs Alessi sought a recommendation from the Tribunal to the Minister that the Minister should order the City to give a direction to Peci under s 214(3) of the PD Act to remove the retaining wall. As Mr and Mrs Alessi noted, in Lafou Pty Ltd and Town of Claremont [2009] WASAT 187, the Tribunal explained at [42] that if the present owner of land does not give permission for the person who carried out unlawful development the subject of a direction under s 214(3) of the PD Act to enter the land and carry out the direction, then the responsible authority is authorised to carry out the direction in accordance with s 215(1) of the PD Act and recover its costs of doing so from the recipient of the direction.
In Drake and City of South Perth [2005] WASAT 271 (Drake), the Tribunal observed at [92] that 'the factors which would guide or inform the exercise of discretion to give a direction' under the predecessor of s 214 'cannot be exhaustively stated'. However, at [93] [97], the Tribunal identified 'five important matters for consideration in the exercise of discretion' as to whether to give a direction. These considerations are:
First, it is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. …
Second, the impact of the contravention of the scheme on the affected locality and environment. …
Third, the factual circumstances in which the contravention of the scheme took place.
Fourth, the time which has elapsed since the development was undertaken in contravention of the scheme.
Fifth, the expense and inconvenience which would be involved in remedying the contravention of the scheme.
Mr Alessi gave evidence that 'the impact of the [retaining wall] on our property is considerable and overwhelming'. He said that the retaining wall 'dominates our property and is overbearing on our enjoyment of our premises'. Mr Allerding agreed that the retaining wall results in 'an adverse impact on the residents of Lot 300 due to the restricted access to ventilation to the bedroom and study windows and the building bulk of the retaining wall'.
However, as Mr and Mrs Alessi acknowledged in their submissions:
The practical effect of carrying out the direction would likely involve the demolition of the dwelling now constructed on Lot 301 …
Notwithstanding the significant impact of the retaining wall on Mr and Mrs Alessi's residential amenity in terms of restricting their access to ventilation to the bedroom and study windows and the visual bulk and scale of the retaining wall, the Tribunal considers that, had the City failed to enforce or implement effectively the observance of DPS 2 (which the Tribunal has found was not the case), having regard to the considerations referred to in Drake, it would not be appropriate for the City to give a direction to Peci to remove the wall for two reasons.
Firstly, a direction to remove the retaining wall would necessarily also require the demolition of a dwelling lawfully constructed by a third party.
Secondly, a direction to remove the retaining wall would also necessarily require the removal of a substantial amount of fill in circumstances where the lawfulness of the placement of the fill, in accordance with condition 13 of the subdivision approval, is not in dispute.

Conclusion

Pursuant to s 211(2) of the PD Act, the Tribunal reports to the Minister that the retaining wall ranging in height from 0.9 metre to 3.9 metres constructed along the eastern boundary of No 172 (Lot 301) Landsdale Road, Landsdale abutting the western boundary of Mr and Mrs Alessi's property at No 177 (Lot 300) Landsdale Road, Landsdale does not require development approval under DPS 2 and that the City has not failed to enforce or implement effectively the observance of DPS 2. Consequently, the Tribunal recommends that the Minister should dismiss the representations.

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER