ANTUNOVICH and CITY OF STIRLING - [2011] WASAT 90

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ANTUNOVICH and CITY OF STIRLING [2011] WASAT 90

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 24 MAY 2011

DELIVERED : 20 JUNE 2011

FILE NO/S: DR 409 of 2010
DR 68 of 2011

BETWEEN: PETER ANTUNOVICH
SIMONE BRAY CHESNIE
NICKOLAS THOMAS MARTIN
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Direction to remove 2 metre high solid street wall erected without approval - Development application for retrospective approval of wall as proposed to be modified Encroachment of wall onto road reserve and adjoining property Owner's consent Low density residential area - Local road - Whether proposed wall promotes surveillance and enhances streetscape - Landowner is president of outlaw motorcycle club - Landowner has been shot in front setback area of site - Landowner erected wall and wishes to retain modified wall to provide security for himself and his family from drive-by shooting - Whether landowner's lifestyle which involves risk of being shot in drive-by shooting is a cogent reason to depart from planning policy - Personal circumstances - Lifestyle

Legislation:

City of Stirling District Planning Scheme No 2, cl 1.3.5.1, Sch 17
City of Stirling Local Planning Scheme No 3, cl 2.4, cl 5.2.2., cl 9.1.1, cl 10.2, Sch 1
Land Administration Act 1997 (WA), s 55(2)
Planning and Development Act 2005 (WA), s 214(3), s 252(1), s 255(1)
Residential Design Codes of Western Australia (2010), Element 6.2, cl 6.2.5, cl 6.2.5 A5, cl 6.2.5 P5
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)

Result:

Development application refused
Direction affirmed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr DP Gillett

Solicitors:

Applicants: N/A
Respondent: McLeods

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

Adbooth Pty Ltd and City of Perth [2006] WASAT 343; (2006) 47 SR (WA) 234
Cassidy and City of Subiaco [2011] WASAT 63
Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 249
GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Nickolas Martin and Mr Peter Antunovich are, respectively, the president and a member of an outlaw motorcycle club. In about April 2008, Mr Martin erected a masonry street wall measuring approximately 2 metres in height along the street boundary and part of the side boundary of his residential property located on a low density residential local road. Mr Martin did not obtain development approval for the wall.
Mr Martin and Mr Antunovich explained to the Tribunal that their 'lifestyle' involves a risk of being shot in a driveby shooting. Indeed, earlier this year, Mr Martin was shot through an opening in the metal gate at the front of his property. Mr Martin and Mr Antunovich said that while they accept that there is a risk that they will be shot, they are concerned for the safety of their families. Mr Martin explained that he built the wall to protect himself and his family from being shot. Mr Antunovich said that, had the wall not been in place when Mr Martin was shot earlier this year, 'the shooter may have stood more open to the property and sprayed the property [with bullets]'.
On 21 April 2010, the City of Stirling issued a direction pursuant to s 214(3) of the Planning and Development Act 2005 (WA) requiring the removal of the wall. On 14 January 2011, Mr Antunovich applied to the City for retrospective development approval for the erection of the wall to be modified by reducing its height to 1.8 metres and reducing its length by 3 metres. On 22 February 2011, the City refused the development application. Mr Martin, Mr Antunovich and another person sought review by the Tribunal of the decisions of the City to give the direction and to refuse development approval for the modified wall.
The Tribunal determined that development approval for the modified wall should be refused. The modified wall does not conform with the acceptable development provision, the performance criteria or the objective of the relevant part of the Residential Design Codes of Western Australia (2010) in relation to street walls and fences. In particular, the modified wall does not contribute towards an attractive streetscape (which, in the street containing the property, is open and characterised by an absence of front fences, or only low front fences) or security for occupants or passers-by (in the planning sense contemplated, namely, by promoting passive surveillance). The modified wall is not necessary to provide adequate privacy and open space for occupants. Furthermore, it does not provide an attractive setting for the house.
The Tribunal also determined that Mr Martin's lifestyle and personal circumstance is not a cogent reason to depart from the application of planning policy in the circumstances of this case. Planning law is, fundamentally, concerned with the development and use of land, not with the identity of the user. The modified wall is a permanent structure that would remain long after the personal circumstance of Mr Martin ceased to be material. Thankfully, in this country, very few people need be genuinely concerned that they or their family will be targeted in a driveby shooting.
The Tribunal also determined that the direction to remove the wall should be confirmed because:
•it is in the public interest of orderly and proper development that planning laws should generally be complied with;
•the wall has an adverse amenity impact in terms of the streetscape and character of the area;
•Mr Martin's personal circumstance is not a cogent reason to allow a wall to remain;
•there was no excessive delay on the part of the City; and
•the expense and inconvenience of removing the wall does not warrant its retention.

Introduction

Mr Nickolas Martin is the President of an outlaw motorcycle club. Mr Peter Antunovich is also a member of the club. Mr Martin and Mr Antunovich explained to the Tribunal that their 'lifestyle' involves a risk of being shot in a driveby shooting. Indeed, earlier this year, Mr Martin was shot through an opening in the metal gate at the front of his property located in a residential street in Balcatta (site). Mr Martin and Mr Antunovich said that, while they accept that there is a risk that they will be shot, they are concerned for the safety of their families.
In about April 2008, Mr Martin erected a masonry street wall measuring approximately 2 metres in height along the northern or street boundary and the northern part of the western side boundary of the site. On the northern or street boundary of the site, the wall comprises two sections, with a total length of approximately 18 metres, separated towards the eastern end by a 3 metre wide driveway entrance and metal gate with vertical bars. On the western boundary of the site, the wall is approximately 8 metres in length. Mr Martin explained that he built the wall to protect himself and his family from being shot because of his lifestyle. Mr Antunovich said that, had the wall not been in place earlier this year when Mr Martin was shot in the front setback area of the site, then 'the shooter may have stood more open to the property and sprayed the property [with bullets]'.
At the time when the wall was erected, the site was zoned Residential with a residential density coding of R20 under the City of Stirling District Planning Scheme No 2 (DPS 2). Under cl 1.3.5.1 and Sch 17 of DPS 2, the erection of the wall required the prior approval of the City of Stirling (City or Council). However, Mr Martin did not obtain development approval for the erection of the wall.
On 21 April 2010, the City gave the then registered proprietor of the site, Ms Chesnie Bray, a direction pursuant to s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) requiring Ms Bray to 'pull down and remove the Wall' together with a patio that was also constructed at the site. On 14 December 2010, Mr Antunovich commenced proceeding DR 409 of 2010 on behalf of Ms Bray for review, pursuant to s 255(1) of the PD Act, of the City's decision to give the direction.
On 14 January 2011, Mr Antunovich applied to the City for retrospective development approval for the erection of the wall (as proposed to be modified) and for a patio at the site under the City of Stirling Local Planning Scheme No 3 (LPS 3) which has replaced DPS 2. The site is zoned Residential with a residential density coding of R20 under LPS 3. A survey that accompanied the development application shows that the wall encroaches onto the road reserve by between 0.04 metre and 0.09 metre and encroaches onto the adjoining property to the west by between 0.06 metre and 0.09 metre. The development application proposed the modification of the wall by reducing its height to 1.8 metres and by removing a 1.5 metre section on each side of the driveway.
On 22 February 2011, the Council granted retrospective development approval for the patio, but refused approval for the wall as proposed to be modified. On 3 March 2011, Mr Antunovich commenced proceeding DR 68 of 2011 for review, pursuant to s 252(1) of the PD Act, of the decision of the City to refuse development approval for the modified wall.
Pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA), proceedings DR 409 of 2010 and DR 68 of 2011 were heard and determined together with evidence in one proceeding being evidence in the other proceeding.

Should development approval be granted for the modified wall?

Mr DP Gillett, who appeared on behalf of the City, submitted that the proposed development cannot be approved because the Crown or the City, which has the care, control and management of the road reserve under s 55(2) of the Land Administration Act 1997 (WA), and the owner of the adjoining property to the west, have not signed the development application form to indicate owner's consent in respect of the encroaching parts of the wall, as required by cl 9.1.1 of LPS 3. However, as the Tribunal said in Adbooth Pty Ltd and City of Perth [2006] WASAT 343; (2006) 47 SR (WA) 234 at [57]:
… Section 29(1) of the SAT Act states that 'the Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision'. The section enables the Tribunal to grant owner's consent to the lodgement of a development application where the original decision-maker is empowered to do.
Furthermore, on 22 December 2010, the owner of the adjoining property to the west signed a statement that he was aware of Mr Martin's intention to build the wall and gave 'full permission' for it and that he is 'willing to complete any documentation required by the Council in order to settle any issues that may arise in relation to the structure'. The Tribunal, therefore, has power to consider and determine the development application, and will now proceed to do so.
Clause 5.2.2 of LPS 3 states:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the by the Residential Design Codes is to conform with the provisions of those Codes.
Clause 2.4 of LPS 3 enables the Council to make local planning policies. In accordance with that clause, the City adopted the City of Stirling Local Planning Policy No 2.7 Streetscapes (Streetscapes Policy) which substituted an acceptable development provision within the City's district for the acceptable development provision in relation to street walls and fences stated in cl 6.2.5 A5 of the Residential Design Codes of Western Australia (2010) (Codes). Relevantly, the substituted acceptable development provision states as follows:
A5.1The fence within the primary street setback not exceeding 1.8m in height (2.0m to piers or columns) provided that, where the fence is above 1.2m in height, that portion above 0.75m in height being visually permeable (refer Figure 1).
Figure 1 of the Streetscapes Policy contains a diagrammatic representation of this acceptable development provision showing the solid portion of street walls and fences within the primary street setback area limited to a 0.75 metre base and 2 metre high piers or columns, up to 0.5 metre in width, and with the remainder of the structure being 'visually permeable'. The note to Figure 1 explaining 'permeability' states as follows:
Visually permeable fencing is required to ensure that the fence is 'open' or 'see through', thereby minimising its bulk whilst maintaining reasonable visibility between the dwelling and the street. Pickets (if used) should be no wider than 75 mm, and the distance between pickets should be no less than half of the width of the picket.
As Mr David Spencer, a town planner and Senior Planning Officer (Compliance) employed by the City, said in evidence, the proposed wall does not comply with the acceptable development provision A5.1 substituted by the Streetscapes Policy, because it is located within the primary street setback of the site and is of solid masonry construction for its full height of 1.8 metres other than in the location of the gate.
The corresponding performance criteria in cl 6.2.5 P5 of the Codes in relation to street walls and fences states as follows:
Front 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 to the front setback; or
•the need to provide privacy to north facing outdoor living areas.
Clause 6.2.5 of the Codes forms part of Element 6.2 Streetscape requirements. The objective of this Element is:
To contribute towards attractive streetscapes and security for occupants and passers-by, ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings.
As Mr Spencer observed, the streetscape in the locality of the site has a generally open appearance. There is either a total absence of front fences or only low front fences. The proposed wall is inconsistent with the performance criteria 'to promote surveillance and enhance streetscape', because, as Mr Spencer said:
The dwelling is obscured by the Proposed Wall and the Proposed Wall will disrupt the streetscape because no other properties in [the street in which the site is located] have 1.8m high front walls in their primary street setback areas.
The property adjoining the site to the east, which is a corner lot with frontages to two streets, is the only property in the vicinity of the site that presents to the street on which the site is located with a 1.8 metre high solid masonry wall. It appears that the street number and address for postage of the adjoining property to the east is to the street on which the site is located, rather than to the other street to which it has frontage. However, as Mr Spencer explained, because the front door, garage and driveway of the adjoining property to the east are oriented to the other street, from a planning perspective, the 'primary street' in respect of that property is the other street and the 'secondary street' in respect of that property is the street on which the site is located. In contrast to the modified wall on the site, the masonry street wall on the adjoining property to the east, therefore, complies with the relevant acceptable development provision A5.2, substituted by the Streetscapes Policy in respect of cl 6.2.5 of the Codes, which states:
A5.2The fence within the secondary street setback not exceeding 1.8m in height (2.0m to piers or columns).
The adjoining property to the east is also distinguishable from the site, because it appears that the principal outdoor living area of the adjoining property is located between the house on that property and the street to which the site has its frontage. In contrast, as discussed below, the principal outdoor living area of the site is located to the south or behind the house on the site.
In relation to the first bullet point in cl 6.2.5 P5 of the Codes, as Mr Spencer said, the street on which the site is located is a local road, rather than a primary or district distributor or an integrator arterial road. The bullet point does not, therefore, contemplate the need for a 1.8 metre high solid fence to provide protection from noise and headlight glare in the circumstances of this case.
In relation to the second bullet point in cl 6.2.5 P5 of the Codes, as Mr Spencer said, 'there is no need to provide screening to the primary street setback of the [site] as the area is paved and used for the parking of vehicles'.
In relation to the third bullet point in cl 6.2.5 P5 of the Codes, while the street setback area of the site is north facing and Mr Martin said that he sits out in that area next to a fish pond that is located at the western end, the street setback area of the site is paved and clearly primarily used for the parking of motor vehicles and motor cycles, whereas the principal outdoor living area of the site is located is to the south or rear of the house. That area contains a pool, a substantial 'al fresco' building and an open section. There is, therefore, no 'need to provide privacy to north facing outdoor living areas' for the purposes of the third bullet point in cl 6.2.5 P5 of the Codes.
Furthermore, as Mr Spencer explained, the considerations specified in the performance criteria in cl 6.2.5 P5 of the Codes do not include erection of front walls and fences to prevent shooting into residential properties.
It follows, as Mr Spencer considered, that the modified wall does not conform with either the relevant acceptable development provision or the performance criteria in cl 6.2.5 of the Codes. It also follows that the modified wall does not meet the objective of Element 6.2 of the Codes. For the reasons given by Mr Spencer, the modified wall does not contribute towards an attractive streetscape or security for occupants or passersby (in the planning sense contemplated, namely, by promoting passive surveillance), is not necessary to provide adequate privacy and open space for occupants, and does not provide an attractive setting for the house. As the proposed development does not conform with this provision of the Codes, the development application must be refused in consequence of cl 5.2.2 of LPS 3.
Furthermore, and in any case, if the modified wall did conform to the provisions of the Codes, the development application would warrant refusal in the exercise of planning discretion in the circumstances of this case. Clause 10.2 of LPS 3 requires the Council (and the Tribunal on review), in considering an application for development approval, to have 'due regard' to considerations including:
…
fany Local Planning Policy adopted by Council under clause 2.4 …;
…
n.the preservation of the amenity of the locality;
...
As noted earlier, the Streetscapes Policy is a local planning policy adopted by the Council under cl 2.4 of LPS 3. The Streetscapes Policy contains the following objectives:
•To contribute towards attractive streetscapes and security for occupants and passersby;
•Ensure adequate privacy and open space for occupants;
•Provide an attractive setting for buildings; and
•To ensure that fences visible from the street do not detract from the residential amenity of an area.
The term 'amenity' is defined in Sch 1 of LPS 3 to mean:
… all those factors which combine to form the character of an area and include the present and likely future amenity[.]

For reasons discussed by Mr Spencer, the modified wall is inconsistent with the objectives of the Streetscapes Policy, because:
•it would have an adverse effect on the character, and therefore amenity, of the street by imposing a large, solid, masonry street wall within an open streetscape characterised by an absence of any front fences or only low front fences;
•it reduces security for occupants and passers-by by eliminating the capacity for passive surveillance between the house and the street;
•it is not necessary to ensure adequate privacy and open space for occupants of the house; and
•it does not provide an attractive setting for the house, given that it would largely obscure the house.
The Tribunal has discussed the function of planning policy in planning assessment in a number of decisions summarised in Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 249 at [49] [50]. As the Tribunal said in Cassidy and City of Subiaco [2011] WASAT 63 at [41]:
… The principles can be summarised in the following three propositions:
1.planning policy has to be considered as a fundamental element in or a focal point of the decision-making process;
2.the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case; and
3.there must generally be a cogent reason to depart from a sound planning policy that has been regularly applied.
Mr Antunovich and Mr Martin presented essentially four arguments as to why the Streetscapes Policy should be departed from in the circumstances of this case. First, Mr Antunovich and Mr Martin referred to their 'lifestyle' as members of an outlaw motorcycle club, and in particular to the risk that they or members of their families may be shot. However, as the Tribunal said in GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 at [67]:
Planning law 'is concerned with the use of land not with the identity of the user': per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. Development approval is not personal to an applicant for approval, but rather runs with the land. …
Similarly, Professor Leslie Stein said in Principles of Planning Law (Oxford University Press, 2008) at page 172:
Perhaps the best reason for excluding personal considerations is that '[i]f the development proposed entails works of a permanent kind, it should be borne in mind that it will remain long after the personal circumstances of the applicant have ceased to be material' [Tameside Metropolitan Borough Council v Secretary of State [1996] EWHC Admin 135]. This is consistent with the planning consent being a right that follows the land and not the applicant.
Mr Antunovich and Mr Martin acknowledged that their circumstances are 'special' and 'unique'. Thankfully, in this country, very few people need be genuinely concerned that they or their family will be targeted in a driveby shooting. Mr Martin's personal circumstance is not a cogent reason to depart from the application of the planning policy in the circumstances of this case.
Secondly, Mr Antunovich and Mr Martin provided photographs of 11 other street walls in the area. However, six of the examples are on primary or district distributor roads in respect of which the first bullet point in the performance criteria in cl 6.2.5 P5 of the Codes contemplates 'the need to provide protection from noise and headlight glare'. In relation to the five examples of street walls on local roads, as Mr Spencer observed, one appears to be in the order of 20 years old and another is located at the secondary (rather than primary) street setback of a property. In relation to the three other examples of street walls on local roads, the Tribunal is not aware of the facts and circumstances, including when the wall was built, whether the wall was approved by the City and the planning framework that applied at the time. Furthermore, none of the three are on the same street as the site. The other examples of street walls identified by Mr Antunovich and Mr Martin do not, therefore, provide a cogent reason to depart from the application of the planning policy in the circumstances of this case.
Thirdly, Mr Antunovich and Mr Martin tendered submissions in support of the modified wall in two standard forms apparently signed by the residents of 23 properties in the immediate vicinity of the site. These submissions state that the submitters are 'more than happy to have the wall stay erect, and find it in no way offensive or unattractive to our streetscape'. Because the submitters were not called to give evidence, the City was unable to test the views expressed in the submissions. However, in any case, these submissions are not a cogent reason to depart from the application of the planning policy in the circumstances of this case. Rather, the consequence of the submissions, if accepted, would be to undermine the planning policy, as the position expressed in them would be equally applicable to each of the properties of the submitters and, indeed, to each of the properties in the street.
Finally, Mr Antunovich and Mr Martin argued that they felt that they were being 'victimised' in relation to the wall because of their membership of an outlaw motorcycle club. However, the evidence presented to the Tribunal indicates that the refusal of the development application for the modified wall by the Council was a sound planning decision.
It follows that the decision of the Council made on 22 February 2011 to refuse development approval for the modified wall should be affirmed.

Should the direction be confirmed, varied or set aside?

In Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301, the Tribunal said the following at [62] [63]:
As the Tribunal observed in Drake and City of South Perth & Anor at [92], the factors which guide or inform the exercise of discretion under s 10 of the TPD Act (and s 214 of the PD Act) cannot be exhaustively stated. It would be impossible and inappropriate to attempt to do so.
However, at [93] [97], the Tribunal identified five important matters for consideration in the exercise of the discretion. These considerations are as follows:
•it is in the public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that, normally, those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity;
•the impact of the contravention of the scheme on the affected locality and environment;
•the factual circumstances in which the contravention of the scheme took place;
•the time which has elapsed since the development was undertaken in contravention of the scheme; and
•the expense and inconvenience which would be involved in remedying the contravention of the scheme.
The Tribunal considers that the decision of the City to give the direction should be confirmed for the following reasons.
The existing wall was erected without development approval and a development application for retrospective approval of a modified wall which is lower and of a lesser width than the existing wall has been refused.
For reasons discussed earlier in relation to the visual impact and effect on passive surveillance of the modified wall, the contravention of DPS 2 by the erection of the existing wall has an adverse amenity impact on the affected locality and environment, in terms of streetscape and character of the area.
For reasons discussed earlier in relation to the development application, Mr Martin's 'special' or 'unique' personal circumstance is not a cogent reason to allow a physical structure of the scale of the existing wall (or the modified wall) to remain.
It has not been suggested that there was any excessive delay between the City becoming aware of the erection of the existing wall and the issue of the direction.
Finally, there would obviously be expense and inconvenience for Mr Martin in remedying the contravention of DPS 2. However, in the circumstances of this case, the expense and inconvenience of removing the existing wall does not warrant its retention in contravention of the planning legislation.
It is appropriate that the period within which the existing wall is to be pulled down and removed should be extended to 60 days from the date of the Tribunal's decision.

Orders

For the reasons set out above, the Tribunal makes the following orders:

Proceeding DR 409 of 2010

1.The application for review is dismissed.
2.The decision of the respondent to give a direction pursuant to s 214(3) of the Planning and Development Act 2005 (WA) to Chesnie Simone Bray dated 15 April 2010 to pull down and remove the existing street wall at the address referred to in the direction is confirmed but varied so that the existing street wall must be pulled down and removed within 60 days of the date of this order.

Proceeding DR 68 of 2011

1.The application for review is dismissed.
2.The decision of the respondent made on 22 February 2011 to refuse a development application lodged by the applicant on 14 January 2011 for retrospective development approval of a modified street wall at the property referred to in the development application is affirmed.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT