ALLAN and CITY OF SOUTH PERTH
[2006] WASAT 208
•27 JULY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ALLAN and CITY OF SOUTH PERTH [2006] WASAT 208
MEMBER: MR J JORDAN (MEMBER)
HEARD: 1 MAY 2006
DELIVERED : 27 JULY 2006
FILE NO/S: DR 76 of 2006
BETWEEN: ROBERT IAN ALLAN
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning – Development application – Demolition of existing house and construction of new house – Part demolition of existing 1.8 metre high front boundary fence and installation of new gate – Condition requiring whole front fence to comply with Residential Design Codes of Western Australia 2002 – Codes require open fence above 1.2 metres – Extent of modification to existing fence – New development required to meet performance criteria of Codes – Whether new fence created matter of fact and degree – Extent of modification does not create new fence
Legislation:
City of South Perth Town Planning Scheme No 6, cl 4.1(3)
Residential Design Codes of Western Australia 2002, cl 3.2.5, cl 3.2.5 P5, cl 3.2.6, Element 2
Planning and Development Act 2005 (WA)
State Administrative Tribunal Rules 2004 (WA), r 15
Result:
The application be allowed
Development proposed be modified to provide for the development of the front fence and gate as shown on the sketch "Attachment A" dated 18 April 2006
Condition 1(i) be deleted from the development approval granted by the respondent 12 January 2006
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Ms GR Poezyn (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: City of South Perth
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms D Thomas and Ms S Taylor of 104 Banksia Terrace, Kensington instructed their architect, Mr Robert Allan, to apply to the City of South Perth for planning approval to demolish their existing house and to develop a new two storey house on their land. As part of the planning application, it was proposed that a section of the 1.8 metre high fence across the front of the lot be demolished, the driveway widened to double car width and a new automatic sliding gate be installed.
The City of South Perth granted conditional planning consent for the development. One of the conditions required the existing front fence be modified to be solid to only 1.2 metres above the ground and above this to be visually permeable to comply with the standards of the Residential Design Codes of Western Australia 2002.
Mr Allan asked that the condition be deleted, arguing that only a portion of the fence was being removed, the rest would remain the same, and the fence provided the owners with privacy and security.
The Tribunal has determined that it is a matter of fact and degree whether a front fence in its entirety becomes new development as a result of some change. New development requires the provisions of the Residential Design Codes of Western Australia 2002 to be applied. It has been concluded that because of the limited extent of the change and as 12.5 metres of the existing front fence would remain, new development is not created and the condition in dispute can be deleted from the approval.
Introduction
Ms Donna Thomas and Ms Susan Taylor (owners) own Lot 179 (No 104) Banksia Terrace, Kensington (subject land). The subject land has an area of about 790 square metres and has on it a single house facing north east to Banksia Terrace. On the front boundary of the subject land is a rendered brick fence about 1.8 metres high. The front fence extends from the north west corner along the front boundary for 12.5 metres. At this point, the fence curves in about 3.5 metres to the edge of a driveway which is about 2.8 metres wide. At this setback are double gates, one hinged on the pillar at the end of the curved section of the fence, the second attached to a pillar on the south east boundary of the subject land. At the north west end of the front fence is a pedestrian gate about 1.3 metres wide along from which is a letterbox.
Mr Robert Allan (applicant), an architect engaged by the owners, applied to the City of South Perth (respondent) for planning consent for the development of a new two storey single house to replace the existing single storey house on the subject land. The application sketches showed various alterations to the existing front fence.
The respondent's approval
The respondent granted the proposed development conditional planning approval. Condition (1)(i) reads:
"The front fence being modified to comply with clauses 3.2.5 and 3.2.6 of the Residential Design Codes."
The applicant then lodged with the Tribunal an application for review of condition (1)(i).
Amended proposal for the fence
At the directions hearing for this matter, the respondent identified seven proposed changes to the front fence. The applicant then included with his witness statement prepared for the hearing (exhibit 2), a sketch titled "Attachment A" which was given the date 18 April 2006 (Attachment A). This sketch shows an accurate depiction of the existing front fence, and shows a plan view and elevation of what is labelled the "preferred modified front fence", which reduces significantly the proposed changes.
At the commencement of the hearing, the applicant applied to have the application amended to include the modified front fence shown on Attachment A as the form of development that the owners would like the Tribunal to consider. Ms Gabriela Poezyn, a planning officer acting as agent for the respondent, said the respondent had no objection. Ms Poezyn said that, notwithstanding the modification made to the fence in Attachment A, the respondent's position remains that the condition is necessary and should remain. The Tribunal allowed the grounds of the application for review to be amended as provided for in r 15 of the State Administrative Tribunal Rules 2004 (WA) to include as part of the proposed development the modified front fence shown on Attachment A.
Attachment A shows that the 12.5 metre length of front fence on the boundary would remain untouched as would be the gate and the letterbox. The curved section would be removed. It would be replaced by a 1.5 metre long section of open vertical steel rod fencing along the line of the front boundary attached to the existing fence to provide visibility in the visual truncation. An automatic gate, also of open steel rods, would slide across the proposed double driveway to a post adjacent to the junction of the front boundary and the south east side boundary.
Clauses 3.2.5 and 3.2.6 of the Residential Design Codes
Clauses 3.2.5 and 3.2.6 referred to in condition 1(i) are found in Element 2 of the Residential Design Codes of Western Australia 2002 (Codes) which is headed "Streetscape Requirements". Clause 3.2.5 is headed "Street Walls and Fences" and states:
"Performance Criteria
P5Front walls and fences to promote surveillance and enhance streetscape, taking account of:
•the need to provide protection from noise and headlight glare where roads are designated as Primary or District Distributors or Integrator Arterials; or,
•the need to provide screening where there is no alternative outdoor living area to the front setback."
Under "Acceptable Development" it states that development that complies with the following is deemed to meet the performance criteria:
"A5Front walls and fences within the primary street setback area that are visually permeable 1.2m above natural ground level."
Clause 3.2.6 of the Codes is headed "Sightlines at Vehicle Access Points and Street Corners" and states:
"Performance Criteria
P6Walls or fences to primary or secondary streets, rights‑of‑way or communal streets so that adequate sightlines are provided at vehicle access points.
Acceptable Development
A6Walls and fences truncated or reduced to no higher than 0.75m within 1.5m of where walls and fences adjoin vehicle access points where a driveway meets a public street and where two streets intersect."
The respondent's Town Planning Scheme No 6 (TPS 6) provides at cl 4.1(3) that, unless otherwise provided in TPS 6, the development of land for residential purposes shall conform to the provisions of the Codes. There are no planning controls for the design of front fences in TPS 6, nor does the respondent have a policy on front fences.
Discussion
It was the applicant's submission that the respondent could not retrospectively apply cl 3.2.5 and cl 3.2.6 of the Codes. The applicant said that there was no provision in the Codes or TPS 6 that addressed the need to alter an existing fence to comply with the provisions of the Codes if part of that fence is modified. There was therefore discretion available as to whether the requirements of the Codes were imposed.
The applicant argued that the respondent was wrong in its assumption that the absence of any control should be interpreted that any change to an existing fence meant that the whole fence must go. In his submission, up to 50% of the original fence could be modified or demolished as a general practice before the fence lost its original properties.
Mr Allan said the owners wanted the fence to remain because it suited their residential use of the subject land. In the circumstances of the application, the existing fence should be allowed to remain, but with the modifications shown in Attachment A.
Ms Poezyn, assisted by Mr Rod Bercov, a senior planner, presented the respondent's case. Under cross‑examination, Ms Poezyn said that if no changes at all were made to the front fence, then no condition would be imposed. That is, the whole of the existing house might be demolished, but the existing fence if unchanged, could remain. If any change at all was to be made to the fence, even just the shifting of the letter box, then it was not open to the respondent to deem that fence had not been changed. If the fence were changed, it was the respondent's position that it had no choice other than to apply the provisions of the Codes. Ms Poezyn said that the Codes did not provide for part demolition of a non‑complying fence and so there was no option other than to consider as "new" any fence that was modified and therefore the standards of the Codes had to be complied with.
The applicant drew an analogy between the proposed changes to the fence and changes that might be made to an existing dwelling. If an existing dwelling did not comply with the standards of the current Codes, and it was proposed that an additional room be added, it would not be necessary for the existing dwelling to be changed to comply with those standards. This, he said, should also apply to the existing fence on the subject land.
The respondent argued that a fence should be distinguished from a dwelling as a fence was a much smaller entity and any change was of greater significance. The respondent also said that if the change to be made to a dwelling were significant then the standards of the Codes should be applied to the whole dwelling. The respondent said there was no yardstick as to how much of a building could be changed before the Codes were applied. The Tribunal agrees that it is necessary to establish that the change to the house is not so comprehensive that it would be appropriate to have the whole building comply and not allow some remaining portion of the structure be used as a device to avoid redevelopment complying with the current standards.
The Tribunal also agrees that the fence and the house can, in certain circumstances, be addressed as separate elements in the one development proposal. The respondent's submission was simply that in relation to a front fence, there was no discretion available other than to apply the standards of the Codes because the fence was being modified. The Tribunal does not accept this approach.
It was common ground that the Codes provide the only guidance on this issue because of the absence of any provision in TPS 6 or a policy adopted by the respondent. Significant is that at the beginning the list of performance criteria for Element 2 of the Codes, it states:
"New development should meet these criteria." (emphasis added)
The Tribunal has before it the proposed changes to the front fence shown in Attachment A. There is now no proposed change to the 12.5 metre length of the front fence that actually sits on the front boundary. The Tribunal is of the view that the 12.5 metre length of fence that is not altered is not "new" development.
At some point the changes to the front fence might be such as to effectively result in a new fence which must necessarily be completely subject to the requirements of the Codes. The Tribunal considers it is necessarily a matter of fact and degree when determining whether that point has been arrived at. The Tribunal has determined that, with the demolition of just the curved brick section and its replacement with the steel rod extension to provide the visual truncation for the widened driveway, that point has not been reached. Whether the changes originally proposed for the front fence crossed the threshold from an existing structure to a new development was not explored by the parties and no view was formed by the Tribunal.
The Tribunal has formed the view that the 12.5 metre section of existing front fence can remain with condition 1(i) deleted from the approval.
Other issues raised by the applicant
While the conclusion drawn above is considered sufficient to dispose of the matter, the applicant also raised other issues in support of his clients' position and the Tribunal considers it appropriate to comment on them.
Ms Thomas, who was a witness, gave her personal views on crime in the locality and said that the existing fence provided her with a sense of security. Without more evidence on actual crime and what measures were best to address any crime in a residential locality, and particularly this locality, the Tribunal was not in a position to determine that there existed circumstances sufficiently special to consider a fence different from that required by the Codes.
On streetscape, both Ms Thomas and the applicant referred to photographs which showed that directly opposite the subject land the length of Banksia Terrace between Seventh Avenue and Pitt Street comprises fibre cement fences and metal gates which are at the side of properties that front these other streets. The existing fence hid this view and was one of four such fences on the six lots between the subject land and Bright Street, the next street to the north west.
The Tribunal noted that the view across the road was poor. It does not accept, however, that, in normal circumstances, an applicant should be given relief from development standards so that a less than desirable view can be shut out. As to the other high fences in the locality, the respondent pointed out that these pre‑date the current standards. Again, in normal circumstances, the Tribunal would not consider that the presence of these fences provided a general precedent for ignoring the development standards applicable to a new fence. In this instance, the local streetscape will be made no worse by the proposed development and slightly more of the lot will be open to view as a result of the demolition of the curved wall.
The applicant also argued that the new house was designed so that there was an outdoor living area within the front setback accessible from a bedroom. As this location was selected as an appropriate place for outdoor living space, the second dot point of the performance criteria of cl 3.2.5 P5 was satisfied and a front fence higher than 1.2 metres was justified.
Ms Poezyn, correctly, pointed out that the exception was only available under cl 3.2.5 P5 of the Codes when there was no outdoor living area alternative to the front setback. She identified outdoor living areas available in the backyard and said that the performance criteria exception therefore did not apply.
The Tribunal does not accept the applicant's approach of selecting a particular outdoor living area and then arguing that because of the location chosen the performance criteria were satisfied. There is nothing to stop a homeowner using a front setback as an outdoor living area, but this only attracts the concession available in cl 3.2.5 P5 when there is no other location on the site available for such use. If there is space available elsewhere on the site for outdoor living away from the public eye, then the performance criterion is not satisfied and the standard should be maintained. The development standard cannot be avoided simply by a preference for outdoor living in the front setback when there is yard available for private outdoor living space behind the front setback.
Conclusion
The standards applicable to front fences are found in the Codes because there are no relevant provisions in TPS 6 and the respondent has not adopted a policy on front fences to guide decision‑making. The Codes in Element 2 say that new development should meet the performance criteria. The Tribunal does not accept that simply because some change is made to a front fence the fence in its entirety becomes new development.
It is a matter of fact and degree as to whether the resultant development must be considered as new or is simply existing development with an addition. In this instance, having regard to the extent of existing fence that remains and the change being a comparatively minor addition to it, the Tribunal has concluded that a new fence does not result. The Tribunal notes that the addition would satisfy the requirement for the provision of adequate sightlines required by cl 3.2.6 of the Codes. It has therefore been concluded that the 12.5 metres of the existing front fence can remain and the condition in dispute be deleted from the approval.
Orders
1.The application be allowed.
2.Development proposed be modified to provide for the development of the front fence and gate as shown on the sketch "Attachment A" dated 18 April 2006.
3.Condition 1(i) be deleted from the development approval granted by the respondent 12 January 2006.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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