ARNOLD and TOWN OF CLAREMONT - [2009] WASAT 231

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ARNOLD and TOWN OF CLAREMONT [2009] WASAT 231

MEMBER: MR B HUNT (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 24 NOVEMBER 2009

FILE NO/S: DR 170 of 2009

BETWEEN: BARRY ARNOLD
Applicant
AND
TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning - Development application - Boundary wall setback - Residential Design Codes - Amenity of adjoining property

Legislation:

Residential Design Codes of Western Australia (2008), cl 1.3.1, cl 6.3, cl 6.3.1, cl 6.3.2 P2
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town of Claremont Town Planning Scheme No 3, s 43.1, s 43.1(e), cl 43, cl 76, cl 76(2) Pt IV, cl 76(2)(a)

Result:

The application for review is allowed
The decision of the respondent is varied

Category: B

Representation:

Counsel:

Applicant: Mr S Allerding
Respondent: Mr CA Penheiro

Solicitors:

Applicant: Allerding & Associates
Respondent: Penheiro Development Assessments

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

Freeman and City of Subiaco [2008] WASAT 303
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd and Shire of Kalamunda (1994) 10 SR WA 296

REASONS FOR DECISION OF THE TRIBUNAL

Summary of Tribunal's decision

The Town of Claremont in granting planning consent on 8 April 2009 for 'Proposed additions and alterations to an existing dwelling at No 10 (Lot 29) Caxton Road, Claremont' imposed a condition (namely condition 1.3) which required 'the proposed wall of the building to be set back by approximately 720 millimetres to match the building line setback of the original cottage'.
The application had been for the wall to be on the boundary, or as subsequently amended in submissions, such that the wall be 'set back off the northern boundary sufficient to retain the existing brushwood fence and associated footings in their present alignment'.
The applicant sought a review of the Town of Claremont's decision on the basis that the application meets the performance criteria of the Residential Design Codes of Western Australia (2008) and the provisions of cl 76 of the Town of Claremont Town Planning Scheme No 3.
Upon consideration of the arguments put forward by the respondent and the applicant, the Tribunal accepted that while there would be some impact on the neighbouring property, the impact was not sufficiently adverse to refuse the proposal.
The application for review of the Town of Claremont's decision to require the proposed wall to be set back by approximately 720 millimetres to match the building line setback of the original cottage is allowed and the conditions are varied to reflect this decision.

Introduction

An application for planning approval was lodged with the Town of Claremont (respondent) in November 2008 for construction of a new kitchen, bathroom, laundry and alterations to garage, and after preliminary assessment by the respondent, was referred to nominated adjoining landowners/residents.
The application was subsequently amended by deletion of the garage proposals and a reduction in the height of the proposed boundary wall.
The respondent received detailed submissions from the landowners of No 8 Caxton Road, Claremont (property to the north of No 10 Caxton Road) and from their consultant planners.
The respondent determined the matter in April 2009 and in so doing imposed the condition that is the subject of this review. The Tribunal notes that the respondents' officer's report and recommendation did not propose a condition regarding a setback of the wall.
Pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), conduct of the matter proceeded entirely on the basis of documents, although the Tribunal had the benefit of a view on 31 August 2009, accompanied by representatives of the respective parties. This view included the neighbouring property at No 8 Caxton Road, Claremont.

Town Planning Scheme and policy provisions

The subject land is zoned 'Residential' in accordance with Town of Claremont Town Planning Scheme No 3 (TPS 3) and is assigned a density code of R25.
Part IV of TPS 3 Special Amenity, Design and Development Control requires cl 76(2) to be considered for every application for planning approval with respect to a building:
(2)Before the Council may approve an application for planning consent to which this Clause applies the Council shall be satisfied that:
(a)the appearance of the building will not adversely affect the character or amenity of the locality and will not clash in harmony with the appearance of adjoining or neighbouring buildings;
(b)the proposed building, addition or alteration will not have any adverse affect on the privacy of any residential property;
(c)if the proposal includes the use of reflective glass, that use will not give rise to any glare or other discomfort to the occupiers or users of any other property or to the users of any public place;
(d)all servicing areas and other parts of the land or building, which are likely to be untidy in appearance, will be completely screened from public view and from view from adjoining properties;
(e)additions or alterations to an existing building are so designed as to be sympathetic and compatible with that building.
The Residential Design Codes of Western Australia (2008) (Codes) are adopted by TPS 3 and therefore constitute the mechanism for planning control of residential development in the Town of Claremont.
The Codes address boundary setback requirements at Part 6 Design elements cl 6.3 'Boundary setback requirements', and it is common ground that the application does not comply with the acceptable development criteria and therefore must be assessed against the performance criteria.
The performance criteria, listed as design element 6.3.2 'Buildings on boundary':
P2Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development;
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.

The respondent's consideration and refusal

The respondent received submissions on the application from the adjoining owner at No 8 Caxton Road (the neighbour), their consultant planners, and further submissions from the applicant's designer and the applicant's consultant planner.
The respondent's planning officer prepared a report on the application for the respondent's 7 April 2009 meeting, and in that report outlined the background and assessment against various criteria.
Relevantly, the respondent's planning officer considered that the application met the requirements of cl 76 of TPS 3 and also the performance criteria of cl 6.3.1 'Buildings setback from the boundary' of the Codes, and recommended approval with conditions.
The Tribunal does not know why the matter was assessed against cl 6.3.1, rather than cl 6.3.2 which is 'Buildings on boundary' and while the parties have not drawn attention to this matter, it is considered relevant in as much as the criteria are different in their wording. The Tribunal considers that the weight afforded to the officer's report and recommendation is reduced as amenity is not a term raised for consideration although it may be argued that there are similarly worded concepts like:
Assist in ameliorating the impact of building bulk on adjoining properties;
…
The planning officer's recommendation was to support the application, with conditions relevant to the proposed boundary walls finish and associated matters.
The planning officer's recommendation was amended by the respondent Council to include at condition 1.3:
The proposed wall of the building to be setback by approximately 720 millimetres to match the building line setback of the original cottage.
The reasons given for the amendment by Council were:
1)Council is not satisfied that relaxation of the setback requirements contained in the ADC would not be detrimental to the amenity of the northern neighbour's pool area.
2)The proposed boundary wall, parapet wall, is noncompliant with the RCodes and exceed the Codes in length and height by almost 200%. Additionally the proposed boundary wall will impact negatively on the amenity of No 8 Caxton Road.
3)The officer's report does not consider the detrimental effect of the appearance of a solid parapet wall on the neighbouring property on the southern boundary. Council considers that in this case aesthetic factors are a very important part of the neighbour's amenity in their pool area. To relax the setback requirements to the extent requested by the applicant would cause significant detriment to the amenity of the northern neighbour according to TPS 3 s 43.1(e) and RCodes cl 6.3.1 and cl 6.3.2.
Whilst Mr Penheiro for the respondent does not go to the details of the Council's reasons for amending their officer's recommendation, the Tribunal considers that it is relevant to make comment on them as follows:
1)This refers to the Acceptable Development Codes (ADC) whereas the matter is being considered on the performance development criteria.
2)This expression of noncompliance is also with regard to the ADC.
3)The reference to TPS 3 is consistent in summarising the concerns relative to 'detriment to the amenity' and is the central issue for consideration.
TPS 3 s 43.1(e) is a subsection of cl 43 which is headed 'Relaxation of SetBacks' and reads:
43.Relaxation of Set-Backs:
(1)Notwithstanding the requirements of Table No. 2 or the Residential Planning Codes relating to building set-backs from boundaries and subject to sub-clause(2) of this Clause, the Council may approve of the development of land for the purpose of Aged or Dependent Persons’ Dwellings or a Dwelling (Self contained) where the proposed development does not comply with those requirements if the Council is satisfied that:
(a)it would otherwise be difficult to construct the building or to extend an existing building of a reasonable standard; or
(b)a lesser set-back would be consistent with the character of the street or locality; or
(c)to do so would enable an existing building of architectural or townscape value on the land to be retained; or
(d)the approval would enable additions to an existing building to be built to the same set-back; and
(e)to do so would not be detrimental to the privacy or amenity generally of adjacent residential uses.
(2)The Council shall not grant planning approval of a development pursuant to this Clause unless the Council has first sought and considered the views of the owners and occupiers of land adjoining the land proposed to be developed.
The respondent's consideration that the amenity of the northern neighbour would be detrimentally affected is a matter that the Tribunal will later consider, as this emerges in the submissions of the relevant town planning experts as the central issue.
The Tribunal does however consider that the Council's reasons for amending their planning officer's recommendations are predicated on consideration of the matter utilising the Acceptable development criteria whereas their consultant, Mr Penheiro, considers that the matter is appropriate to assess against the Performance criteria of the Codes and therefore the 'Relaxation of SetBacks' requirements of s 43(1) of TPS 3 are not relevant in this instance.

The proposal (in part)

The joint statement dated 24 June 2009 from the applicant and the respondent's consultant planners summarises the agreed facts as follows:
FACTS:
…
3.By an application for planning approval dated 6 November 2008, the Applicant sought planning approval for additions and alterations to an existing two storey single house on Lot 29 (No 10) Caxton Road, Claremont.
4.The proposed Boundary Wall consists of a length of 4.5 metre and height of 2.914 metres from natural ground level. The proposed boundary is adjacent to a wall on the northern neighbouring property that contains no major openings along its length except for a balcony contained at the eastern end. It is agreed the proposed boundary wall extends approximately 2.8 metres beyond the edge of a canvas enclosed and roofed alfresco area and 4.4 metres from the eastern edge of the wall of the neighbour's dwelling.
5.The activities on the other side of the proposed boundary adjacent to the proposed development consist in part of timber decking as part of the side southern access of the adjoining property being adjacent to the canvas enclosed alfresco area and in part and a garden bed circa 1 metre in width with olive trees and other vegetation.
6.The Boundary Wall is subject of an addition to the Dwelling for a new kitchen.
7.The Boundary Wall is proposed to abut an existing low retaining wall (approximately 450 mm high) which has a brush wood fence on top. The retaining and fence constitutes the dividing boundary fence between No. 8 and 10 Caxton Road, Claremont. By measurement, at the base of the boundary wall the review site is situated approximately 300mm lower than the finished levels on the adjoining northern property.
8.Lot 29 (No. 10) Caxton Road, Claremont has an area of 405m²with a width 10.06 metres and depth of 40.27 metres.
9.Under the Town of Claremont Town Planning Scheme No. 3, the Site is zoned 'Residential' and has a coding of R25.
10.The Dwelling at No. 10 Caxton Road, Claremont is identified in Town's Municipal Inventory.
11.The Dwelling was constructed in approximately 1901 with additions and alterations to the structure conducted in 1962 (an addition to the rear of the property) and in 1981 (alterations to the dwelling including a 5 metre parapet wall along the northern boundary).
12.The Dwelling is setback approximately 710 to 720 mm from the side and northern boundary, which is shared with No. 8 Caxton Road, Claremont.
13.The Application was advertised by the Applicant through certified mail on 19 December 2008, to surrounding owners.
14.Letters were received by the Town of Claremont from owners at No. 8 Caxton Road, Claremont and their representatives addressing various matters, on 13 January 2009, 22 January 2009, 17 February 2009, and 19 February 2009.
15.The Applicant lodged amended plans on 10 February 2009 depicting a change to the subject Boundary Wall height from 3.086 metres to 2.914 metres.

The issues

The parties have agreed the issues are:
(i)Is the development consistent with the Performance criteria of the Codes cl 6.3.2 Buildings on boundary?
(ii)Is the development consistent with cl 76 of the TPS 3 relating to design considerations in so far as does the proposed boundary wall have undue and adverse amenity impacts on the neighbouring property to the north?
Whilst many of the submissions dealt with the Acceptable development criteria of the Codes, the parties have agreed in their expression of the issues that the matter needed to be considered against the Performance criteria of the Codes, and the Tribunal has followed that approach.

The respondent's argument

The respondent was represented by Mr Penheiro, a qualified town planner with over 22 years experience, mainly in local government.
Mr Penheiro, in his witness statement dated 10 July 2009 addressed in some details the criteria to be considered under element 6.3.2 of the Codes and considered at [13] that:
All performance criterion under element 6.3.2 are being met with the exception of dot point 4:
'not having any significant adverse effect on the amenity of the adjoining property'.
He then makes what may be considered several mitigating statements that are further taken up by the applicant in their submissions.
Further in his witness statement, Mr Penheiro when considering the impact of the proposal states at [19]:
The visual impact of the boundary wall can be reduced by retaining the existing brushwood dividing fence and the supporting retaining wall in its present alignment.
…
and further at [27]:
The retention of the present brushwood finish will reduce the impact on the neighbouring property and outlook from the outdoor living area on No 8 Caxton Road.
…
and further at [33]:
The level difference has the potential to reduce the wall height by approximately 0.3 metres to 0.43 metres (maximum) and reduce impact in either location on a setback from the boundary.
…
and further at [40]:
There is no potential for loss of privacy created by the boundary wall development. The setting back of this wall and use of the set back area has potential to affect privacy.
Notwithstanding the above, Mr Penheiro does consider 'the boundary wall will have undue and adverse amenity impacts on the neighbouring property'.
These matters are developed further by his subsequent response statement (dated 29 July 2009), where Mr Penheiro comments on many issues raised by the applicant and their consultant, Mr Allerding. However, in his conclusion he returns to what he describes as the main issue at [16]:
…
what level of effect will the proposed wall have on the adjoining property (No 8 Caxton Road) and the resident's amenity
Mr Penheiro comments on the difficulty of determining adverse effects on the amenity of an adjoining property and the lack of guidance given in the Codes. However, he notes that in cl 1.3.1 of the Codes 'Objectives for residential development', amenity is referred to as:
…
(c)To ensure appropriate standards of amenity for all dwellings.
and further at:
(e)To protect the amenity of adjoining residential properties.
Mr Penheiro returns to his concerns as to the adequacy of the Codes in addressing amenity in [17] [20] and the weight that may be afforded to the opinion of adjoining landowners which are sought by the local government as part of their consideration.
Mr Penheiro, from the perspective of his experience advises that some local governments consider the perceived personal effect on adjoining landowners as:
… the most important factor in determining the level of severity of affect on amenity
He concludes his submissions by stating that:
It is my opinion that there is reasonable ground to support that the wall will have some if not considerable affect on the amenity of the neighbour. It is further probable that the effect can be increased if the existing brushwood fence and supporting retaining wall is removed and the wall is constructed on the boundary.

The neighbour's argument

The neighbours, (owners of No 8 Caxton Street, Claremont) have made submissions that go to several specific matters as well as the general matter of amenity. The specific matters relate to noncompliance with the acceptable development standards of the Codes.
The proposal does not meet the acceptable development requirements of the Codes and as the parties have agreed that it is appropriate to assess the boundary wall against the Performance criteria, their submissions relating to the question of compliance are not the substantive issue to be considered. This is common cause between the applicant and the respondent.
The submission of 17 February 2009 at [6] addresses in particular the question of amenity and states that:
A boundary wall, and in particular a boundary wall which exceeds the aggregate height and length prescriptions, serves to create an unfortunate sense of enclosure for our outdoor space. The size, length, scale, mass and proximity of the wall will seriously reduce our enjoyment of our outdoor space and reduce the value of our property.
The position of the proposed boundary wall is coincident with our own outdoor space and garden. Its proximity to our open/outdoor space will through its length and height have an adverse affect on our amenity.

The applicant's argument

Mr Allerding acts for the applicant, and is a town planner with over 20 years experience, and while his submissions provide details on a range of matters, it is the issue of amenity that requires consideration.
Mr Allerding states that the relatively short length of the wall, the height when acknowledging the lower level of the applicant's land, and the fact that it is on the southern boundary mean that the matter is 'appropriate for approval having regard to the performance criteria'.
The relevant facts regarding the proposed boundary wall are that it has an average height of 2.914 metres, is 4.5 metres long and extends approximately 2.8 metres beyond the neighbours alfresco area or 4.4 metres from the eastern edge of the wall of the neighbours dwelling.
The height difference between the properties is approximately 300 millimetres with the review property being lower. The applicant considers that the 'practical effect' of this height difference is that the wall would come within acceptable development standards by being less than 2.7 metres.
Mr Allerding considers that the visual outlook for the neighbour is substantially the same for the boundary wall proposal as it would be for a setback arrangement, and as a consequence there is no loss of amenity.
Mr Allerding in his 'Response to Respondent's Evidence' dated 28 July 2009 at [12] [19] brings together the elements raised by the respondent is addressing the issue of amenity and considers that:
… they relate primarily to the visual appearance of the wall as cited (sighted) from the neighbour's side and, in particular, the removal of the brushwood fence and impact on glass pool fencing.
The Tribunal will return to this understanding of amenity later, however, it is agreed that the matters identified by Mr Allerding form the 'built' considerations of the application.
In this regard he cites comments by Mr Penheiro, previously noted by the Tribunal at [33] [36] that appear to mitigate the impact of the boundary wall, namely the proposed retention of the brushwood fence , the satisfactory 'finish' of the wall, the making good (if required) of the glass pool fence, the difference in height between the property which he considers causes the height of the wall (as a practical expression) to be within the acceptable development standards, the prospect of the existing landscaped area providing screening, the absence of any loss of privacy and any ambient light.
The Tribunal now needs to return to the central issue of amenity and whether the proposed boundary wall will have an adverse impact on the amenity of the neighbouring property, and if so, to what extent.

Amenity

The performance criteria of the Codes are required at dot point 4 of Design element 6.3.2 'Buildings on boundary' to:
…
not have any significant adverse effect on the amenity of the adjoining property.
Clause 76 at (2)(a) of TPS 3:
…
the appearance of the building will not adversely affect the character or amenity of the locality and will not clash in harmony with the appearance of adjoining or neighbouring buildings;
The term 'amenity' is defined in the Model Scheme Text in the following terms:
"Amenity" means all those factors which combine to form the character of an area and include the present and likely future amenity.
In Freeman and City of Subiaco [2008] WASAT 303 (Freeman) the Tribunal at [94] separated the amenity of the locality from the amenity issues that may impact on neighbouring properties, and considered that in these matters consideration needs to be given to privacy, overshadowing and solar access and bulk.
In (Freeman) the proposed building is at the rear of the site rather than central as in the matter under review. The bulk and scale of the building in that instance (5.6 metres higher and less than 9 metres long) was considered to create a loss of amenity.
The circumstances in this matter are different, as the proposed wall extends 2.8 metres beyond and 2.6 metres higher than the neighbour's alfresco area, and in the opinion of the respondent's consultant planner can be mitigated to some extent.
It is further agreed by the parties that there are no issues regarding privacy, overshadowing or solar access as the proposed wall is on the southern boundary of the neighbour's property.
The general assessment of amenity impact as set out in Tempora Pty Ltd and Shire of Kalamunda (1994) 10 SR WA 296 requires a consideration of the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
The existing amenity of at No 8 Caxton Road, Claremont, has by the neighbour's letter to Council of 22 January 2009:
The back garden of our home is dominated by 6 Caxton Road to the north which occupies around 75% of its block as site coverage…
The outdoor space is described in the neighbour's submission as being carefully considered and, having viewed the site, the Tribunal accepts this characterisation.
The proposed boundary wall will now, by the applicant's submission, be setback from the boundary so as to retain the existing brushwood fence and associated footings in their present alignment.
It is considered by both parties, and the Tribunal agrees, that the retention of the existing brushwood fence is an important consideration in preserving the amenity of the area.
The proposed boundary wall will project above the brushwood fence, and while the applicant has contended that the wall will exceed the height of the existing pergola by approximately 1 brick course, it is apparent from photographs submitted in the applicant's witness statement that the pergola exceeds the brushwood fence.
The conclusion from this analysis is that the proposed wall will exceed the brushwood fence and therefore have some impact on the amenity of the neighbour.
The neighbour has established a southern garden bed including kangaroo paws and olive trees positioned in front of the brushwood fence and by reference to photographs provided by Mr Penheiro and observed by the Tribunal, these trees already exceed the height of the proposed wall.
Mr Penheiro at [18] notes:
A portion of the proposed boundary wall will be only partially visible from the outdoor living area on No 8 Caxton Road, in the location adjacent to a landscaped area and 'olive' trees on that property. The trees are presently still quite young and have potential to exceed the height of proposed boundary wall parapet if retained or not significantly pruned back.
The Tribunal, on the merit of the evidence considers that while the proposal would have an impact on the amenity of the neighbour, the impact is mitigated by factors including the retention of the brushwood fence, the existing and potentially developing vegetation and the difference in level between the properties which has the effect of 'reducing' the height of the wall.
The view of residents, as well as the opinions of experts are considered to be relevant in assessing amenity as outlined in Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74, where Barker J at [21] considered that:
… Indeed, residents of a locality are often wellplaced to identify the particular qualities and characteristics which contribute to their residential amenity.
Mr Penheiro, in his response statement at [19] and at [20] considered that following a qualitative assessment of the 'amenity factors' that:
… a further factor and no less important to be considered by the assessor is direct affect on adjoining owners. What weighting is placed on the opinion of adjoining landowners/occupiers varies between local government authorities, but one thing I think is certain, most LGA's are serious in their treatment of consulting adjoining owners and associated issues even though they may arguably not support this opinion.
The respondent Council appears to have placed substantial weight on the submissions of the neighbour as the record shows that the resolution to approve the development with the amended condition requiring the wall to be setback approximately 720 millimetres was carried without dissent.
There is no commentary in the respondent Council's report and consideration regarding the mitigating aspects of the proposal that both Mr Penheiro and Mr Allerding refer to extensively.
It is considered that while the Tribunal has been able to consider those further submissions they were not available to the respondent Council, however, they were to Mr Penheiro and he has acknowledged their mitigating effect and to the extent that it is relevant progressed from the respondent Council's understanding of the matter.
The Tribunal therefore having considered all the submissions and having accepted that the matter should be considered under the performance criteria of the Codes, concludes for the preceding reasons that the impact of the proposed wall is not so detrimental as to warrant refusal of the application.
For the above reasons, the application for review of the respondent's decision to require the wall to be set back is allowed.

Orders

1.The application for review of the respondent's decision is allowed.
2.The decision of the respondent, made on 7 April 2009, to grant conditional approval for 'Additions and Alterations to Existing Dwelling at No 10 (Lot 29) Caxton Road, Claremont' is varied so that condition 1.3 requiring:
'The proposed wall of the building to be setback by approximately 720 mm to match the building line setback of the original cottage'.

is deleted, and replaced with conditions requiring:
(a)the plans being modified such that the northern parapet wall being set back off the northern boundary sufficient to retain the existing brushwood fence and associated footings in their present alignment;
(b)the external face of the boundary wall being finished in consultation with the adjoining property owner or in the case of a dispute, to the satisfaction of the Chief Executive Officer; and
(c)the applicants make good any reinstatement required of the glass pool fence and the brushwood fence arising as a consequence of the erection of the proposed wall.

I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR B HUNT, SENIOR SESSIONAL MEMBER