Arnold and Anor and Town Of Claremont

[2007] WASAT 284

ARNOLD & ANOR and TOWN OF CLAREMONT [2007] WASAT 284

Last Update :01/11/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 284
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:252/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	29/10/2007
No Pages:	16	Judgment Part:	1 of 1
Result:	Development approval is not required for the proposed boundary fencing under the Town of Claremont Town Planning Scheme No 3
Category:	A

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ARNOLD & ANOR and TOWN OF CLAREMONT [2007] WASAT 284 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 30 OCTOBER 2007 FILE NO/S : DR 252 of 2007 BETWEEN : BARRY VERNON ARNOLD

ANNE TUDOR ARNOLD
Applicants

AND

TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning - Development application - Boundary fencing - Dividing fence - 1.8 metre high 16 metre long colorbond fence adjoining side boundary behind building facade - Whether development approval required for boundary fencing - Proposed fence set back 300 millimetres to 400 millimetres from Municipal Heritage Inventory-listed house on adjoining property - Access to side wall of house on adjoining property

Legislation:

City of Fremantle Town Planning Scheme No 3, cl 14, cl 15

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Dividing Fences Act 1961 (WA), s 5
Local Government Act 1995 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 4(1), s 238(4), s 242, s 252(1)
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.3.1, Element 2, Element 3
State Administrative Tribunal Act 2004 (WA), s 54(10), s 60(2)
Town of Claremont Town Planning Scheme No 3, cl 25(1), cl 26(3), cl 46
Town Planning and Development Act 1928 (WA), s 2

Result:

Development approval is not required for the proposed boundary fencing under the Town of Claremont Town Planning Scheme No 3

Category: A

Representation:

Counsel:

Applicants : Mr P Webb (Acting as Agent)
Respondent : Mr J Algeri (Acting as Agent)

Solicitors:

Applicants : Peter D Webb & Associates (Town Planners)
Respondent : Joe Algeri Property Planning and Appeals Consultants (Town Planners)

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

Hazmah and City of Fremantle [2006] WASAT 360
Kazim v Shire of Kalamunda; Dogtash v Shire of Kalamunda (1982) 6 APAD 32
Smith & Anor and City of Fremantle [2007] WASAT 153

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr and Mrs Arnold applied for development approval for the construction of a 1.8 metre high x 16 metre long colorbond boundary fence behind the principal façade of their house and the principal façade of the house on the adjoining property to the south, and between the external side walls of these houses. The development application was refused by the Town of Claremont on the basis that it would have an adverse effect on the character of the adjoining house and on access to the external wall of that house. Both houses are listed on the Town's Municipal Heritage Inventory. The proposed fence would be set back approximately 300 millimetres ­ 400 millimetres from the wall of the adjoining house. Mr and Mrs Arnold sought review of the Town's decision.

2 The issues in the review were:

1. Whether development approval is required for the proposed boundary fencing under the applicable local planning scheme.

2. If development approval is required, whether development approval should be granted having particular regard to heritage issues and the impact on the amenity of the adjoining property.

3 The Tribunal determined that development approval is not required for the proposed boundary fencing under the local planning scheme. The fence is a "structure" and therefore falls within the ambit of the definition of "development" on its literal and strict application. However, the scheme indicates an intention that the term "development" does not extend to a fence of the nature and height and in the location proposed. Moreover, it is not within the scope and purpose of the local planning scheme to regulate the construction of a fence of the nature and size and in the location proposed.

4 The Tribunal also observed that, if development approval had been required by the local planning scheme, the development application would have been approved subject to a condition that the fence be constructed in panels not greater than 2.0 metres in length, to facilitate ease of removal for maintenance of the adjoining house, if Mr and Mrs Arnold or their

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successors in title agree to provide access across or from their property to enable maintenance of the adjoining house.

5 The decision of the Town to refuse development approval was set aside and a decision was substituted that development approval is not required for the proposed fence.

Introduction

6 These proceedings involve an application brought by Mr and Mrs Arnold under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Town of Claremont (Town or Council) to refuse development approval for the construction of a 1.8 metre high x 16 metre long colorbond boundary fence adjoining the central portion of the southern boundary of their property at No 10 Caxton Road, Claremont (site). The proposed fence would occupy the area between an existing timber fence approximately 1.8 metres in height located on the southern boundary of the site adjoining the front garden and verandah and a limestone boundary wall approximately 2.1 metres in height adjoining the rear yard. The proposed fence would be located behind the principal façades of the house on the site and the house on the adjoining property to the south, and between their respective external side walls, and would be set back approximately 600 millimetres to 700 millimetres from the southern external wall of Mr and Mrs Arnold's house and approximately 300 millimetres to 400 millimetres from the northern external wall of their neighbours' house.

7 The development application was refused by the Town on the recommendation of its assessing officer for the following reason:

"The fence will adversely affect the character of the existing dwellings, in particular that of 12 Caxton Road, Claremont and impact upon the accessibility of that property owner to the northern side of the dwelling."

8 At the first directions hearing, the matter was referred to on-site mediation before Member Mr P McNab. The mediation did not result in resolution of the proceedings. The parties then consented under s 54(10) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to Mr McNab determining the matter entirely on the documents under s 60(2) of the SAT Act. However, the President has formed the opinion under s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues and has referred the matter for determination by me. Although Mr McNab made an order that, if he does (Page 5)

not constitute the Tribunal for the purposes of determining the matter, then a view of the site is to be arranged in consultation with the parties, I do not consider that I require a view, given the photographs which are attached to the application.

Site and locality

9 The site has a width of 10.06 metres, a depth of 40.29 metres and an area of 405 square metres. The site is located on the eastern side of Caxton Road and forms part of an original residential subdivision bounded by Caxton Road, Princess Road, Goldsworthy Road and Agett Road, which appears to remain intact. Each of the 36 residential lots in the subdivision has identical dimensions and area to the site. The site contains an original late 19th century single story brick house with front timber verandah behind an open wrought iron fence and gate with brick piers. As noted earlier, there is an approximately 1.8 metre high timber fence on the southern boundary of the site adjoining the front garden and verandah. There is a timber gate between the southern external wall of the house and the rear of the existing timber fence which would preclude view of the proposed boundary fence from the street and front garden of the site.

10 The adjoining property to the south at No 12 Caxton Road contains an original late 19th century timber framed house behind an open wrought iron front fence and gate with stone piers. The existing timber fence dividing the front gardens of the site and No 12 Caxton Road and vegetation along the northern end of the front garden of No 12 Caxton Road would preclude view of the proposed boundary fence from the street and from the front garden of No 12 Caxton Road.

11 The southern external wall of the house on the site and the northern external wall of the house at No 12 Caxton Road are separated from one another by only approximately 1.0 metre - 1.1 metres. The southern wall of the house on the site is set back by approximately 600 millimetres - 700 millimetres from the common boundary and the northern wall of the house at No 12 Caxton Road is set back by approximately 300 millimetres - 400 millimetres from the common boundary. The area between the walls of these houses is currently paved but not fenced. A hot water system which is attached to the house at No 12 Caxton Road is located in this area and appears to project over the common boundary onto Mr and Mrs Arnold's property.

12 The site is zoned "Urban" under the Metropolitan Region Scheme and "Residential" with a residential density coding of "R25" under the

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Town of Claremont Town Planning Scheme No 3 (TPS 3 or Scheme). Both the site and No 12 Caxton Road are listed on the Town's Municipal Heritage Inventory as "Significant Places" as both properties contain houses that are original dwellings from the subdivision in the late 19th century.

13 The surrounding locality is characterised by a mix of refurbished houses from the original era of development in the late 19th century and early 20th century and more modern, typically larger dwellings.

Submission by neighbours

14 The development application was referred to four adjoining property owners and occupiers for comment. A submission was received from Mr and Mrs Casella who own and reside at No 12 Caxton Road.

15 The Tribunal granted leave to Mr and Mrs Casella to make a written submission in relation to the application under s 242 of the PD Act. Mr and Mrs Casella provided a written submission dated 26 September 2007.

16 Mr and Mrs Casella have resided at No 12 Caxton Road for seven and a half years. By way of background, they state as follows:

"Our properties share a common access space of approximately 1.1 metres and Mr Arnold indicated that he had surveyed his property and claimed that the boundary was 700 millimetres from his building line. This common space is presently not fenced and has not been fenced for what we believe is a considerable time, in excess of 20 years, and has provided us with access for general maintenance over the years including: replacement of broken glass to the bedroom window, replacement of some decayed weatherboard, maintenance to the hot water unit, replacement of flyscreens to the bedroom and dining room windows, replacement of decayed bird batons to the narrow eaves, spot painting, yearly termite inspections (the latest in August 2007).

On each of these occasions the availability of access was essential for the proper maintenance of this side of our house and access has always been available.

[Mr and Mrs Arnold]'s proposal for a fence would deny us this access and this is of great concern to us."

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17 Mr and Mrs Casella also express the following concerns in their submission:

"Quite clearly a fence 300 - 400 millimetres from our house would seriously impact on our amenity in respect to access, maintenance, natural light and visual amenity as well as preservation of a place of historic/heritage value."

Issues for determination

18 The following two issues arise for determination in this review:

1. Whether development approval is required for the proposed fence under TPS 3.

2. If development approval is required for the proposed fence under TPS 3, whether approval should be granted having particular regard to heritage issues and the impact of the fence on the amenity of Mr and Mrs Casella's property.

Is development approval required for the proposed fence?

19 Mr and Mrs Arnold contend that they do not, in fact, require development approval for the proposed fence under TPS 3. In contrast, the Town contends that the construction of a fence would amount to the erection of a building or structure and therefore falls within the general scope of the term "development" as used in TPS 3. In support of this contention, the Town relies on the decision of the Town Planning Appeal Tribunal in Kazim v Shire of Kalamunda; Dogtash v Shire of Kalamunda (1982) 6 APAD 32.

20 Clause 25(1) of TPS 3 states as follows:

"A person shall not commence development of any land in the District without first having applied for and obtained the planning approval of the Council under this Scheme."

21 The term "development" is defined in s 4(1) of the PD Act, unless the contrary intention appears, to mean:

"the development or use of any land, including -

(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land;

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(b) the carrying out on the land of any excavation or other works;

…"

22 The Town submits, correctly, that the erection of the proposed fence involves the erection of a "structure". However, a 1.8 metre high colorbond boundary fence between Residential-zoned properties and behind the principal façade of the houses is a structure that one reasonably expects to see with reasonably expected impacts. Unusually, I consider that a contrary intention appears in TPS 3 to the term "development" extending to the erection of a boundary fence of the nature and height and in the location proposed by Mr and Mrs Arnold. Moreover, as I said in Smith & Anor and City of Fremantle [2007] WASAT 153 at [21], I consider that a purposive approach should be adopted in the determination of whether a particular activity constitutes "the development or use of any land" for the purposes of the definition of "development" in the PD Act. In my opinion, it is not within the scope and purpose of TPS 3 to regulate, by requiring the submission of a development application and its planning assessment, the erection of a boundary fence of the nature and height and in the location proposed in this case.

23 The Scheme states that it was made by the Town for purposes including relevantly:

"Directing and controlling land development by zoning in such a way as to promote and safeguard the health safety convenience and general welfare of the inhabitants of the district of the Town of Claremont and the amenities of that district."

24 Clause 46 of the Scheme identifies objectives to which the Council must have regard in considering an application "for planning approval for development in the Residential Zone". This clause, and the Scheme generally, is silent about fences, but includes the following objectives:

"…

(3) The continuation of the domestic scale and architectural character of the area of the proposed development;

(4) The preservation of the traditional housing character of the Zone;

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…"

25 A side boundary fence of the nature and height and in the location proposed in this case, between the side walls of adjoining residential properties, is not likely to have any material impact on streetscape, character or amenity generally when viewed from the public domain. As noted earlier, the proposed fence would, in fact, not be apparent at all from Caxton Road. The impacts of a side boundary fence of the nature and height and in the location proposed in this case, between the side walls of adjoining residential properties, are likely to be restricted to overshadowing, loss of daylight and visual bulk and scale affecting the two adjoining properties. However, these amenity impacts are likely to be limited, because of the height of the fence and because any shadow cast by it is likely to be generally within the shadow line cast by the house beyond. Furthermore, the dis­amenity of limited overshadowing, loss of daylight and visual bulk and scale is generally borne equally by each adjoining property and is the consequence of each property obtaining the amenity of privacy and security.

26 Moreover, a boundary fence of the nature and height and in the location proposed in this case is a reasonable incident of residential development and is a reasonably anticipated structure between adjoining residential properties in a Residential zone. This is apparent from the terms of the Town's Fencing Local Law 2000 (Fencing Law). Clause 4(1) of the Fencing Law only requires approval of a fence by the Town under the Local Government Act 1995 (WA) (LG Act) within 6.0 metres of a street alignment if it exceeds 1.2 metres in height. Clause 5 only requires approval under the LG Act of a boundary fence if it exceeds 1.8 metres in height (beyond 6.0 metres from a street alignment). In accordance with s 5 of the Dividing Fences Act 1961 (WA), cl 20 of the Fencing Law prescribes a 1.8 metre high freestanding corrugated fibrous cement dividing fence as a sufficient fence within the Town's local government area.

27 Furthermore, cl 26(3) of the Scheme states that, unless otherwise provided for in the Scheme, "the development of land for any of the residential purposes dealt with by the [Residential Design Codes of Western Australia (2002) (Codes)] shall conform to the provisions of the Codes". The Codes only contemplate planning regulation of fences in the case of front fences, not side boundary fences. The boundary setback requirements in Element 3 of the Codes apply to "buildings". The term "building" is defined in cl 2.2 of the Codes as "[a]ny structure whether fixed or moveable, temporary or permanent, placed or erected upon land … but excludes boundary fences …". The boundary

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setback requirements of the Codes, therefore, do not apply to side boundary fences. In contrast, the streetscape requirements in Element 2 of the Codes expressly apply to front fences. The requirement in cl 26(3) of the Scheme that "the development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of the Codes" (emphasis added), and the contemplation in the Codes that planning regulation of residential development does not extend to side boundary fences, indicates that the term "development" in the Scheme, when used in relation to residential development, does not include the proposed boundary fence.

28 The Scheme therefore indicates an intention that the requirement in cl 25(1) to obtain approval for the "development" of Residential­zoned land does not extend to the construction of a fence of the nature and height and in the location proposed in this case. Moreover, it is not within the scope and purpose of the Scheme to regulate the construction of a fence of the nature and height and in the location proposed in this case. It is unnecessary to regulate such a boundary fence by requiring the making of a development application and its assessment so as to promote and safeguard the health, safety, convenience and general welfare of the inhabitants of the Town and the amenities of the locality. Planning regulation is also unnecessary to achieve the objectives for the Residential zone. A 1.8 metre high colorbond boundary fence between the side walls of adjoining houses is, of its nature, consistent with the domestic scale and architectural character and the preservation of the traditional housing character of the Residential zone.

29 However, I consider that development approval would be required under the Scheme for a side boundary fence that exceeds 1.8 metres in height or is not of a standard solid metal or timber construction. Such a fence is greater in height or different in construction to a standard and reasonably anticipated fence separating residential properties. Such a fence is also likely to have amenity impacts beyond those of a standard and reasonably anticipated fence. I also consider that development approval would be required under the Scheme for the construction of a fence located forward of the principal façade or on a side boundary with a street or other part of the public domain. A fence in such a location is likely to affect the amenities of the locality, particularly in terms of streetscape.

30 It would be preferable for the Town to explicitly deal with boundary fences in the Scheme by expressly declaring when development approval is required. In Hazmah and City of Fremantle [2006] WASAT 360, the Tribunal

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considered a development application for a boundary fence that was expressly required by cl 15 of the City of Fremantle Town Planning Scheme No 3 (Fremantle Scheme) in the relevant area, rather than by cl 14 of the Fremantle Scheme which required the consent of the Council "for any development within the Scheme Area". As in the case of TPS 3, cl 14 of the Fremantle Scheme did not extend to regulating the construction of a boundary fence by simply requiring the consent of the Council for any "development".

31 Finally, as noted earlier, the Town relied on the decision of the Town Planning Appeal Tribunal in Kazim v Shire of Kalamunda; Dogtash v Shire of Kalamunda. That case involved appeals against decisions of the Shire in relation to the erection of asbestos fencing on the boundaries of four 1.0 hectare - 1.3 hectare lots in a Special Rural Zone in Forrestfield. The appellants argued that the construction of a fence was not a "development" within the meaning of the definition of that term in s 2 of the Town Planning and Development Act 1928 (WA) (TPD Act). At that time, the term "development" was defined to mean, unless the context required otherwise -

"The use or development of any land and includes the erection, construction, alteration of or carrying out, as the case may be, of any building, excavation or other works on any land" (see at 38).

32 The appellants submitted that the TPD Act did not authorise planning control on the erection of a fence such as that in question in the appeals. The appellants submitted that planning relates essentially to "the spatial allocation of land use" and not to "the internal arrangements on his property of what a man chooses to do and the miscellaneous structures pertinent to it": at 39. The Tribunal rejected this submission for the following reasons at 39 - 40.

"[W]e cannot accept that planning purposes which are as extensive as those referred to [in the First Schedule of the TPD Act] compel the restrictive interpretation of developments in respect of which planning controls may be imposed contended for by the appellants. Construction of fencing such as that in issue is, among other things, a matter incidental to housing and is relevant in considering the amenity of a locality and, in a broader sense, may, in our view, relate to the orderly planning of a locality."

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33 However, Kazim v Shire of Kalamunda; Dogtash v Shire of Kalamunda is clearly distinguishable from the circumstances in this case. In that case, the appellants argued, in essence, that a fence could not be regulated by planning law, because the TPD Act did not authorise controls over fences. This argument was rejected, having regard to the extensive planning purposes referred to in the First Schedule of the TPD Act. The appellants did not argue that, assuming fences could be the subject of planning regulation, fences of the nature and size and in the locations proposed did not fall within the scope and purpose of the particular planning scheme that regulated "development" of the land. Furthermore, the regulation of fencing of the nature and size and in the locations proposed in that case plainly fell within the scope and purpose of the planning scheme, because the objectives of the Special Rural Zone provisions included "to protect the rural landscape and environment" and "to make provision for retention of the rural landscape and amenity in a manner consistent with the orderly and proper planning of such areas" (see at 40). The Tribunal said at 41 that "it is our opinion that the intention of the [Shire] was the creation of a zone where persons could reside and develop their large blocks in a semi-rural 'garden' atmosphere". Planning regulation of fencing of the nature and size and in the locations proposed was plainly within the scope and purpose of the Special Rural Zone under the applicable planning scheme, because such fencing could materially and adversely affect the protection and retention of the rural landscape, environment and amenity of the locality and the semi-rural "garden" atmosphere. The erection of colorbond fencing 1.8 metres in height behind the principal façades and between the side walls of houses on adjoining residential properties in the Residential zone under TPS 3 is entirely different.

34 It follows that the proposed fencing does not require development approval under TPS 3.

Should development approval be granted for the proposed fencing?

35 This issue does not arise for determination because, as I have found, development approval is not required under TPS 3 for the proposed fencing. However, as the parties addressed this issue, and as Mr and Mrs Casella's submission relates to it, I will express my conclusions as to whether, if development approval were required, I would grant it.

36 As noted earlier, both the site and the adjoining property at No 12 Caxton Road are listed on the Town's Municipal Heritage Inventory as a "Significant Place". The Town's heritage officer indicated

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that the proposal will not have any negative impact on the heritage status of the two dwellings. The Town's heritage consultant reviewed the proposal and is satisfied that it will not compromise the integrity of the heritage dwellings. The Town referred the development application to the Heritage Council of Western Australia (Heritage Council). Although not apparently technically required to do so, the Heritage Council offered comments in which it indicated that the proposal would detract from the aesthetic value of the dwellings and hence their heritage value. The Heritage Council indicated that if a fence is to be constructed, then perhaps consideration should be given to a fence of a height of up to 1.2 metres which is timber framed or wire mesh. However, the proposed fence would not be apparent from the public domain. The fence would only be seen from within the space between the houses and from side windows that currently look onto a side wall 1.0 metre to 1.1 metres away.

37 Mr Joe Algeri, the Town's consultant town planner and representative, gave evidence that, in his opinion, approval of the proposed fencing will have a detrimental impact on the heritage value of No 12 Caxton Road in the sense that it will practically not allow for the required maintenance of that house and could be a catalyst for its neglect. Mr Algeri said that if the owner of the site were to deny access to the owner of No 12 Caxton Road and not allow the dividing fence to be temporarily removed (if practical) when the need for maintenance arises, the owner of No 12 Caxton Road may pursue the "de-listing" of that property as a "Significant Place". In an undated submission to councillors attached to Mr and Mrs Casella's submission to the Tribunal, Mr Casella said that "in the unfortunate event that the application is approved, we will have no alternative but to request that our property be removed from Council's Municipal Inventory of 'significant places'".

38 Mr and Mrs Casella can only access the northern external wall of their house from their property by climbing through one of two windows. Otherwise, they can only get to the northern wall of their house by going through Mr and Mrs Arnold's front garden. Furthermore, it appears that the 300 millimetre ­ 400 millimetre strip of Mr and Mrs Casella's property adjoining their northern wall is insufficient in width to enable maintenance of the wall wholly from their property. As Mr and Mrs Casella said in their submission to the Tribunal, the area between the two houses has been used on occasion for maintenance of their house since they purchased the property seven and a half years ago.

(Page 14)

39 However, the 600 millimetre - 700 millimetre strip of Mr and Mrs Arnold's property adjoining the southern wall of their house is not, as Mr and Mrs Casella describe it in their submission, a "common access space", as a matter of law. As the Tribunal said in a similar context in Hazmah and City of Fremantle at [65], gaining access to the northern wall of No 12 Caxton Road through or from No 10 Caxton Road "would remain a private matter between the neighbours". Although the Tribunal expects neighbours, and people in society generally, to act decently and fairly with one another, it has no jurisdiction to enforce the injunction "you shall love your neighbour as yourself" (Leviticus 19:18) by requiring Mr and Mrs Arnold to provide access over their property to Mr and Mrs Casella. Enforcement of, and remedying non-compliance with, the injunction occurs elsewhere.

40 It would be inappropriate to refuse a development application for a fence so as to allow a person to trespass over another person's property, even at risk to the proper maintenance of a heritage item. However, as the Tribunal did in Hazmah and City of Fremantle, it would be appropriate, where development approval is required for a fence close to the external wall of a building, to condition the approval so as to facilitate removal of parts of the fence to more readily allow access for maintenance of the wall if and when the neighbours agree to such access. If development approval would have been required in the circumstances of this case, I would have imposed a condition that the fence be constructed in panels not greater than 2.0 metres in length to facilitate ease of removal should this be required. While development approval is not required, decency and fairness would suggest that the proposed fence should be constructed in this way.

41 Mr Algeri is of the opinion that the development application does not meet the Performance Criteria set out in cl 3.3.1 of the Codes in relation to boundary setbacks. However, as noted earlier, the boundary setback requirements of the Codes are concerned with the setback of "buildings", which term excludes "boundary fences".

42 Apart from access and maintenance, Mr and Mrs Casella's principal concerns in relation to the proposed fence relate to loss of natural light and visual impact. However, Mr and Mrs Casella's letter of objection to the Council indicates that the fence would project 1.43 metres above the floor level and only 700 millimetres above the sill height of their dining room window, leaving 1.79 metres of unobstructed window area above, and 1.53 metres above floor level and only 750 millimetres above sill height of their bedroom window, leaving 1.66 metres of unobstructed window area

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above. If development approval were required for the proposed fence, I do not consider that this degree of impact in terms of loss of daylight would warrant refusal of the application. Furthermore, although the appearance of 700 millimetres or 750 millimetres of colorbond fence, 300 millimetres ­ 400 millimetres from the window, would have a visual impact, this would not warrant refusal, because the visual impact of a fence of the nature and height and in the location proposed is reasonably expected between residential properties, and the outlook from these windows is presently towards a blank brick wall 1.0 metres ­ 1.1 metres away.

43 It follows that, if development approval were required for the erection of the proposed fence, I would have granted the approval subject to the condition referred to earlier.

Conclusion

44 Development approval is not required under TPS 3 for the erection of the proposed 1.8 metre high colorbond boundary fence which is to be located behind the principal façades and between the side walls of the houses on either side of the boundary. Consequently, the decision of the Town to refuse development approval for the proposed fence should be set aside and a decision should be substituted that development approval is not required.

Orders

45 The Tribunal makes the following orders:

1. The application for review is allowed.

2. The decision of the respondent to refuse development approval under the Town of Claremont Town Planning Scheme No 3 for the erection of a 1.8 metre high x 16 metre long colorbond fence adjoining the central portion of the southern boundary of No 10 Caxton Road, Claremont is set aside and a decision is substituted that development approval is not required under the Town of Claremont Town Planning Scheme No 3 for the fence.

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I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER