Bacich and City of Cockburn
[2014] WASAT 169
•16 DECEMBER 2014
BACICH and CITY OF COCKBURN [2014] WASAT 169
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 169 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:155/2014 | 4 DECEMBER 2014 | |
| Coram: | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) | 16/12/14 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | IVAN BACICH CITY OF COCKBURN |
Catchwords: | Town planning Development application Application for multifunction (cameras, lights and flag) pole in front of dwelling Whether pole requires planning approval Surveillance for security purposes Capability of remote controlled cameras Privacy of neighbours Amenity Impact on streetscape Whether or not conditional approval may be appropriate |
Legislation: | State Administrative Tribunal Act 2004 (WA) City of Cockburn Town Planning Scheme No 3, cl 1.6.1, cl 5.2.2, cl 5.8.3, cl 8.1.1, cl 8.2, cl 8.2.1, cl 10.2, cl 10.2.3 Planning and Development Act 2005 (WA), s 4 Residential Design Codes of Western Australia (2013), Pt 2, Pt 5 |
Case References: | Nil |
Orders | On the application heard before Senior Sessional Member John Adderley it is on 16 December 2014, ordered that:,1. The application for review is dismissed.,2. The decision of the respondent made on 10 April 2014 to refuse development approval for a multi-function (camera, lights and flag) pole at No 18 (Lot 402) Mell Road, Spearwood is affirmed. |
Summary | This is a review of the respondent's decision to refuse a retrospective development application of a multifunction (cameras, lights and flag) pole in front of a dwelling in Spearwood.,The respondent refused the multifunction pole on grounds that it was incompatible with its residential setting and would be detrimental to the amenity of residents in the area and to the quality of the streetscape.,The applicant argued that the proposal did not require planning approval as it should be deemed approved under the Residential Design Codes of Western Australia (2013). The cameras and lights mounted on the pole are appropriate domestic security equipment.,The Tribunal determined that the proposal did require planning approval under the provisions of the local planning scheme. It further found that the proposal did not particularly offend the visual quality of the streetscape. ,Finally, and importantly, the Tribunal concluded that the very high surveillance capability of the surveillance cameras would, however, have the potential (though not intended) to compromise the privacy of neighbouring residential premises. This would result in an unacceptable impact on the reasonably expected amenity of the area.,The Tribunal considered the possibility of a conditional approval, but rejected this course of action because of a lack of certainty as to the practicality of imposing and monitoring of conditions of camera usage, and because the prime function of the application to mount surveillance cameras has been found to be unacceptable.,Based on these findings, the application for review was dismissed and the respondent's decision of refusal was affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BACICH and CITY OF COCKBURN [2014] WASAT 169 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 4 DECEMBER 2014 DELIVERED : 16 DECEMBER 2014 FILE NO/S : DR 155 of 2014 BETWEEN : IVAN BACICH
- Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Town planning Development application Application for multifunction (cameras, lights and flag) pole in front of dwelling Whether pole requires planning approval Surveillance for security purposes Capability of remote controlled cameras Privacy of neighbours Amenity Impact on streetscape Whether or not conditional approval may be appropriate
Legislation:
State Administrative Tribunal Act 2004 (WA)
City of Cockburn Town Planning Scheme No 3, cl 1.6.1, cl 5.2.2, cl 5.8.3, cl 8.1.1, cl 8.2, cl 8.2.1, cl 10.2, cl 10.2.3
Planning and Development Act 2005 (WA), s 4
Residential Design Codes of Western Australia (2013), Pt 2, Pt 5
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
This is a review of the respondent's decision to refuse a retrospective development application of a multifunction (cameras, lights and flag) pole in front of a dwelling in Spearwood.
The respondent refused the multifunction pole on grounds that it was incompatible with its residential setting and would be detrimental to the amenity of residents in the area and to the quality of the streetscape.
The applicant argued that the proposal did not require planning approval as it should be deemed approved under the Residential Design Codes of Western Australia (2013). The cameras and lights mounted on the pole are appropriate domestic security equipment.
The Tribunal determined that the proposal did require planning approval under the provisions of the local planning scheme. It further found that the proposal did not particularly offend the visual quality of the streetscape.
Finally, and importantly, the Tribunal concluded that the very high surveillance capability of the surveillance cameras would, however, have the potential (though not intended) to compromise the privacy of neighbouring residential premises. This would result in an unacceptable impact on the reasonably expected amenity of the area.
The Tribunal considered the possibility of a conditional approval, but rejected this course of action because of a lack of certainty as to the practicality of imposing and monitoring of conditions of camera usage, and because the prime function of the application to mount surveillance cameras has been found to be unacceptable.
Based on these findings, the application for review was dismissed and the respondent's decision of refusal was affirmed.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr A Lefort (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : City Of Cockburn
Case(s) referred to in decision(s):
Nil
Introduction
This is a review of the decision of the City of Cockburn (City or respondent) not to grant retrospective planning approval for an 8 metre high steel pole supporting security cameras, lights and a yard-arm for a flag, erected in the front setback area of residential premises at No 18 (Lot 402) Mell Road, Spearwood (lot, land and or site).
Although there had, apparently, been a flag pole on the land for some years, the pole, in its present form, fitted with security cameras and lights, was erected some time in 2013. It was erected without approval of the respondent.
Following communication between the respondent and the owners of the land, Mr Ivan Bacich and Mrs Bacich, a planning application for retrospective approval of the pole was submitted by Mr Bacich (applicant) on 29 October 2013.
After local advertising of the proposal and consideration of submissions from nearby landowners, the respondent resolved to refuse to grant planning approval for the pole on 10 April 2014. Notice of this refusal was issued to the applicant on 22 April 2014.
The applicant lodged an application for review of the respondent's decision with the State Administrative Tribunal (Tribunal) on 29 April 2014.
The proposed development and its context
Approval is being sought for an 8 metre high steel pole fitted with two security cameras, two floodlights and a yard-arm for flying a flag.
The pole in question is located in the street setback, immediately in front of a single storey, brick and tile dwelling, built in 1984.
The dwelling occupies a 1155m² lot on the north side of Mell Road.
This particular section of Mell Road is oriented east-west, and is straight and relatively level, with long clear sight lines.
Mell Road is largely developed for residential purposes. Land adjoining and to the rear of the lot in question is presently being subdivided into further housing lots. Number 18 will become a corner lot when the new subdivision access road system is completed.
Overhead power line infrastructure, street-lighting and a pedestrian footpath service the northern side of Mell Road. There are no street trees and few trees or bushes featured in front gardens in this section of Mell Road.
Statutory and policy instruments
1 The land is zoned 'Development' under the City of Cockburn Town Planning Scheme No 3 (TPS 3).
2 Clause 1.6.1 of TPS 3 sets out the aims of the Scheme which are to:
(a) ensure that development and the use of land within the district complies with accepted standards and practices for public amenity and convenience;
(b) ensure that the future development and use of land within the district occurs in an orderly and proper way so that the quality of life enjoyed by its inhabitants is not jeopardised by poor planning, unacceptable development and the incompatible use of land.
3 Clause 8.1.1 of TPS 3 provides that:
Subject to clause 8.2, all development on land zoned and reserved under the Scheme requires the prior approval of the local government. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9.
4 Clause 8.2 provides that:
Except as otherwise provided in the Scheme, the following development does not require the planning approval of the local government
(a) the carrying out of any building or works which affect only the interior of a building and which do not materially affect the external appearance of the building except where the building is
(i) located in a place that has been entered in the Register of Places under the Heritage of Western Australia Act 1990;
(ii) the subject of an Order under Part 6 of the Heritage of Western Australia Act 1990;
(iii) included on the Heritage List under clause 7.1 of this Scheme;
(b) the erection on a lot of a single house including any extension, ancillary outbuildings and swimming pools, except where
(i) the proposal requires the exercise of a discretion by the local government under the Scheme to vary the acceptable development requirements of the Residential Design Codes;
(ii) the proposal is inconsistent with the provisions of a Structure Plan prepared and adopted under Part 6 of the Scheme or a Policy prepared and adopted under Part 2 of the Scheme;
(iii) the development will be located in a Heritage Area designated under the Scheme;
(iv) clause 8.2.1 (i) or (j) applies;
(v) the proposal is located on a place that is included on the Heritage List.
(c) the demolition of any building or structure except where the building or structure is -
(i) located in a place that has been entered in the Register of Places under the Heritage of Western Australia Act 1990;
(ii) the subject of an order under Part 6 of the Heritage of Western Australia Act 1990;
(iii) included on the Heritage List under the Scheme;
(iv) located within a Heritage Area designated under the Scheme;
(v) included on the Local Government Inventory.
(d) a home office;
(e) any works which are temporary and in existence for less than 48 hours or such longer time as the local government agrees;
(f) any of the exempted classes of advertisements listed in Schedule 5 except in respect of a place included on the Heritage List or in a Heritage Area; and
(g) the erection of a fence;
(h) the erection on a single lot of two grouped dwellings (included extensions and ancillary outbuildings) where a grouped welling is designated with the symbol 'P' in the cross-reference to that Use Class and a Zone in the Zoning Table, and where the development is consistent with Local Planning Policy No. APD58 (Residential Design Guidelines) and the Residential Design Codes.
(i) the erection on a lot of a single house, including extensions and ancillary outbuilding with an area:
(i) of 100 square metres or less with a wall height of 3 metres in the Development and Residential Zone;
(ii) of less than 100 square metres and a wall height not exceeding 4.5 metres in the Rural Zone and Rural Living Zone;
(iii) of 200 square metres or less with a wall height of 4.5 metres in the Resource Zone;
(iv) and the single house addition or outbuilding are located within a building envelope applying to the lot, where a single house is designated with the symbol 'P' in the crossreference to that Use Class and the respective zones in the Zoning Table, in the case of the Rural Zone and the Rural Living Zone, and in the case of the Resource Zone, Table 1 and 2 of Statement of Planning Policy No. 2.3.
(j) the erection of a single house and two grouped dwellings including any ancillary outbuildings and swimming pools which comply with the provisions of a Detailed Area Plan;
(k) Family Day Care Centre.
(l) The parking of commercial vehicles in accordance with clause 5.10.8(a), 5.10.8(b) and clause 5.10.8(c).
5 Clause 5.2.2 of TPS 3 requires that:
Unless otherwise provided in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes.
6 Clause 5.8.3 of TPS 3 requires that:
Residential development which is not provided for under the Residential Design Codes shall conform to the development standards and requirements determined by the local government in each particular case.
7 Clause 10.2 of TPS 3 sets out the matters to be considered by the Council in considering an application including, relevantly:
The local government in considering an application for planning approval shall have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development subject of the application
(a) the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme Area, including the Metropolitan Region Scheme;
(b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
…
(f) any local planning policy adopted by the local government under clause 2.5, any heritage policy statement for any designated Heritage Area adopted under clause 7.2.2 and any other plan or guideline adopted by the local government under the Scheme;
…
(i) the compatibility of a use or development within its setting;
(j) any social issues that have an effect on the amenity of the locality;
…
(n) the preservation of the amenity of the locality;
(o) the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(y) any relevant submissions received on the application;
(za) any other consideration the Local government considers relevant.
Overall, camera poles are not encouraged in residential areas and security cameras (if required) should be fixed to the existing/proposed dwelling.
9 Part 5, Elements 5.4.4 and 5 of the Residential Design Codes of Western Australia (2013)(Codes)deal with the design principles and deemed to comply criteria for 'external fixtures' and 'utilities and facilities' associated with single, grouped and multiple dwellings.
10 The Planning and Development Act 2005 (WA) (PD Act) at s 4 defines 'development' 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;
(b) the carrying out on the land of any excavation or other works;
(c) in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that
(i) is likely to change the character of that place or the external appearance of any building; or
(ii) would constitute an irreversible alteration of the fabric of any building[.]
11 The respondent refused the application for retrospective planning approval for the steel pole fitted with cameras, lights and a flag-yard (described by the respondent as a 'camera pole') for the following reasons:
1. The proposal does not comply with part 5.4.4 of the Residential Design Codes of Western Australia in relation to External Fixtures.
2. The proposal is incompatible with its residential setting, which is inconsistent with Clause 10.2.1(i) of the City of Cockburn Town Planning Scheme No 3.
3. The proposal causes a detrimental impact on the amenity of nearby residents and the street-scape which is inconsistent with clause 10.2.1(n) and (o) of the City of Cockburn Town Planning Scheme No 3.
Site view
A visit to the site was undertaken on the morning of the hearing to view the multi-function pole on the land and to appreciate the character of the neighbourhood.
The issues to be addressed
The preliminary issue to be addressed is whether the pole fitted with cameras, lights and a flag-yard (a multi-function pole) requires planning approval under TPS 3, or not.
If the preliminary issue is decided in the negative, then the application for review must be upheld and the respondent's decision of refusal should be set aside.
If the preliminary issue is decided affirmatively, then the merits of the application should be considered with regard to the provisions of cl 10.2 of TPS 3, particularly issues associated with;
- • the compatibility of the proposal with its setting,
• any social issues having an effect on the amenity of the locality,
• the preservation of amenity,
• the relationship of the proposal to development on other land in the locality,
• any relevant submissions or considerations.
The respondent's argument
The respondent argued that the pole (described as a camera pole) constitutes development requiring approval under the provisions of TPS 3.
The camera pole should not be approved as it is inconsistent with the provisions of TPS 3.
The respondent lists the following contentions to reason that the application for review should be dismissed:
- • The camera pole detracts from the streetscape and negatively impacts the amenity of neighbours.
• It sets an undesirable precedent for the area.
• It would not represent orderly and proper planning for the area.
• The camera pole is incompatible with its residential setting.
• The pole detracts from the visual amenity of neighbours and their enjoyment of their land.
• The camera pole may cause social issues including privacy concerns because, if neighbouring properties are visible through the camera, there would be a negative impact on the amenity enjoyed by those residents.
• The height and location of the pole is inconsistent in bulk and scale with the single storey dwelling on the land.
• The camera pole is not simply an ancillary structure associated with the dwelling for the purpose of providing onsite security, but provides surveillance far beyond the property boundaries (about 200 metres) which is both unnecessary and inappropriate.
Mr Andrew Lefort, Acting Manager of Statutory Planning at the City of Cockburn, gave evidence on behalf of the respondent.
Addressing the preliminary issue, Mr Lefort expressed the opinion that the camera pole constitutes a 'structure' in accordance with the definition of 'development' as described in the PD Act.
Clause 8.2 of TPS 3, which lists exemptions of certain kinds of development from the requirement for planning approval, does not provide an exemption for a camera pole.
12 Mr Lefort stated that the objectives of the scheme are relevant to all forms of development. A camera pole is not provided for by the Codes, thus, according to cl 5.8.3 of TPS 3, it should conform to appropriate development standards and requirements determined by the local government.
13 Mr Lefort stressed that a camera pole is not a fixture, utility or facility or any use deemed to comply under the provisions of the Codes.
14 The erection of the camera pole on the land, according to Mr Lefort, clearly constitutes development and is not, therefore, exempt from requiring planning approval.
15 Addressing the planning assessment of the application, Mr Lefort agreed that the recently adopted Pole Policy cannot be applied retrospectively. However, the policy does indicate the types of poles that are deemed acceptable. Where a planning application is required for a pole, the application should be determined on its merits.
16 Mr Lefort advised that the respondent is not seeking to discourage security cameras for domestic surveillance, but rather, to control the development of camera poles which could impact the amenity of neighbours.
17 Mr Lefort was of the opinion that what is being filmed by the cameras is largely irrelevant. He was mainly concerned with the visual characteristics of the structure. Mr Lefort did, however, confirm that objections received by the respondent are evidence that the camera pole impacts neighbours.
18 Questioned on the appropriateness of any possible conditional approval, Mr Lefort expressed doubt that a condition seeking to restrict the vision of the cameras was a practical measure.
19 According to Mr Lefort's evidence, the respondent received seven submissions in relation to the application. Four of the submissions were objections.
20 Although not detailed in Mr Lefort's witness statement, the Officer Report to the Council in relation to the application summarises the issues raised by the objectors as follows:
• Concerns about the cameras being an invasion of privacy of nearby residents.
• Concern about light pollution intruding into nearby dwellings.
• Concerns about the detrimental impact of the structure on the street-scape.
• Concerns that support of the application will set an undesirable precedent in residential areas.
• No objection if the cameras and lights were not intrusive and located on the existing dwelling.
• No objection to the lights being directed at the subject site and the vision from the cameras not encroaching into adjoining properties.
The applicant's argument
21 The applicant argued that the pole is deemed to comply under the Codes.
22 The pole does not constitute 'development' as defined under the PD Act and therefore does not require planning approval.
23 Addressing the preliminary issue, the applicant described the pole as a prefabricated piece of steel designed to hold up lights. It is not a 'building', nor is it a 'structure'.
24 There is no definition of the term 'structure' in TPS 3.
25 The On-line Dictionary.com definition of a 'structure', according to the applicant is as follows:
1. Mode of building, construction, or organisation; arrangement of parts, elements or constituents; a pyramidal structure.
2. Something built or constructed, as a building, bridge or dam.
3. A complex system considered from the point of view of the whole rather than of any single part.
26 The applicant contended that the pole, being a simple prefabricated product, as described, does not fall within the definition of a 'structure' as defined by the dictionary.
27 It follows that because the pole doesn't constitute a 'structure' or a 'building', then it is not captured within the definition of 'development' under the PD Act. Therefore, the pole does not require planning approval.
28 The applicant further argued that the pole should only be considered in the context of the Codes, as provided under cl 5.2.2 of TPS 3.
29 The applicant contended that the pole ought to be deemed to comply under the Codes because it is not something identified in any of the relevant rules, particularly Pt 5, Elements 5.4.4 and 5 of the Codes dealing with 'external fixtures' and 'utilities and facilities'.
30 Part 2 of the Codes provides at Element 2.5.4 that approval should be granted if the application satisfies the deemed to comply provisions.
31 Because it is deemed to comply, no application should have been required under the provisions of TPS 3 and it should not have been necessary to advertise the proposal for public comment.
32 The applicant explained that he had originally erected a flag pole on his property in 1985. The pole was about 6 metres in height.
33 The pole was upgraded in 2013 to make it a more stable, 8 metre high multi-function flag pole with security lights and cameras. It is in the same location as the previous pole.
34 The cameras will be set to view the intersection at each end of the street and to do this they need to be at a height of 8 metres in order to clearly identify and record car registration numbers. Focus on the intersections would mean that there would be only a very narrow field of view. This is similar to the function of Main Roads cameras. The cameras are adjustable by remote control. Recordings would only be viewed if a crime was committed in order to identify perpetrators to the police.
35 The applicant denied that the pole detracts from the streetscape. The street is dominated by light and power poles.
36 The applicant disagreed that the cameras and lights detract from the visual amenity of the neighbours and the enjoyment of their land. The lights on the pole point downwards and only light up the owner's property.
37 The applicant denied that there may be privacy concerns for neighbouring properties. The cameras do not impact on anyone.
38 The height and scale of the pole is not inappropriate. The applicant drew attention to and comparison with the height of antennae on Pennlake Drive, some of which appear to be 10 metres above the roof line.
39 The applicant disagreed with the contention that the cameras would undertake unnecessary and inappropriate surveillance beyond the property boundaries. The applicant stated that it is not illegal to film in a public thoroughfare. The intended surveillance is designed to protect the applicant's family.
40 On the basis of the preceding argument, the applicant concluded that the proposed multi-function pole should be approved and that the respondent should be ordered to make restitution for the applicant's fees and expenses.
Draft conditions of approval
41 Draft conditions of approval were prepared by the respondent as follows:
1. The cameras attached to the approved camera pole shall be fixed, immoveable, and shall be directed away from adjacent neighbouring properties at all times.
2. The lighting attached to the camera pole shall at all times be in accordance with the requirements of Australian Standard AS 4282 1997 'Control of the Obtrusive Effects of Outdoor Lighting'.
Analysis
42 The preliminary issue whether the proposal requires planning approval?
43 The applicant's argument relies, firstly, on whether the proposal (which, for the purposes of this review, the Tribunal is content to describe as a 'multifunction pole'), falls within the definition of 'development' as defined under the PD Act.
44 The Tribunal affirms that the proposal does fall within the definition of 'development'. This conclusion is based on acceptance that the 'multifunction pole' is a 'structure', based on the meaning of the word quoted from the Macquarie Dictionary, (3rd ed, 1998):
structure
1. the arrangement of parts to make up a whole;
2. something built …;
…
7. to give form or organisation to.
45 The multifunction pole comprises a manufactured steel pole, a flagyard, flag and halliard, camera mountings, cameras, light mountings, lights, wiring, brackets, switches and so on. Whether or not the multi-function pole is substantially prefabricated, it is clearly an arrangement of parts making up a whole. Therefore, quite clearly, it is a 'structure'. It follows then, that to erect such a structure on the land constitutes 'development' as described in the definition of 'development' under the PD Act.
46 The Tribunal is also mindful that the multi-function pole is a substantial physical entity, located in front of the building setback line, clearly visible from the street and which therefore is a significant feature contributing to the local streetscape and the character and amenity of the area. Given these circumstances it is considered reasonable that the proposal should be subject to the regulatory scope and purpose of TPS 3. It is reasonable, therefore, to expect that the erection of the multi-function pole should constitute 'development' and that such a development should, if required by TPS 3, obligate submission of a development application.
47 Turning to the question of whether the multi-function pole should be assessed and determined in the context of the Codes, the Tribunal is not convinced by the argument that, because it (the multi-function pole), is not listed or mentioned by the Codes, the proposal should be deemed to comply and therefore not require development approval.
48 The Tribunal rejects the proposition that the Codes are the sole instrument to regulate development on land zoned for residential purposes.
49 Where a particular development is identified which is beyond the purpose and regulatory scope of the Codes, the over-arching local planning scheme provisions and standards prevail. This is expressly provided for by cl 5.8.3 of TPS 3.
50 The Tribunal concludes that because the proposed multi-function pole is not a form of development provided for by the Codes, it should therefore be required to conform with appropriate and reasonable development standards and requirements as determined by the local government under TPS 3.
51 Clause 8.2.1 of TPS 3 lists the forms of development that would be exempt from the need for planning approval in the scheme. A multi-function pole (or anything of a similar description, such as a flagpole or mast) is not listed among the exempted forms of development.
52 It is relevant, here, to note that the respondent has adopted a policy to identify development requirements for flag poles and camera poles and to set criteria for such poles that are considered exempt from requiring planning approval. Because this policy post-dated the application under review and because the application does not, in any case, meet the height and location criteria for exemption, the application is not exempted by the policy from the need for planning approval.
53 It therefore follows that, in accordance with cl 8.1.1, a multi-function pole requires the planning approval of the local government.
54 Based on this analysis, the preliminary issue as to whether the proposal requires planning approval under TPS 3 would have to be determined in the affirmative.
55 The Tribunal thus turns to the merits of the application in respect of the relevant criteria of cl 10.2.3 of TPS 3.
56 The respondent contended that the proposal detracts from the streetscape and negatively impacts on the amenity of the neighbours. This argument was based on the circumstance that the multi-function pole was excessive in height and set forward of the building line such that it was visually prominent, but out of character with the generally low profile of mostly single storey dwellings in the street.
57 The Tribunal has some reluctance in accepting this argument. The street is long, wide and open, dominated by street infrastructure including light and power poles and residential power distribution poles. There is little in the way of street vegetation. The applicant's multi-function pole, while quite tall, is not visually out of character with this, perhaps, rather utilitarian streetscape.
58 The Tribunal could not agree that the pole is in some way visually detrimental to, or would compromise the future potential to improve, the quality of the streetscape.
59 It is notable in this regard, that a flag pole has been situated in this same location for many years, apparently without concern or remark. The additional height of the multi-function pole is not, in the opinion of the Tribunal, such a significant factor that would now render the proposal as visually unacceptable in the street.
60 The respondent contended that the use of the cameras and lighting associated with the multi-function pole may detract from the amenity and enjoyment of the neighbours' land. This relates to concerns for the protection of privacy of residents and the potential nuisance of excessive lighting.
61 The Tribunal noted that there were several submissions from local residents expressing worries of this nature.
62 Indeed, it is the capability of the surveillance systems on the multifunction pole that gives the Tribunal the greatest concern.
63 The applicant has described a very particular purpose for his camera surveillance, justifying the height and position of the cameras to focus on the intersections at the end of the street. The Tribunal accepts this reasoning.
64 The applicant has also affirmed that the cameras are remotely controlled from within the house. This is necessary for effective camera operation that will be able to focus on and record car registration numbers at a distance of some 200 metres.
65 The Tribunal notes that the height and position of the cameras on the multi-function pole would also allow, if so aligned and focussed by remote control, a considerable scope of view across adjoining private properties.
66 The Tribunal does not suggest that the applicant would so use the cameras. It nevertheless would appear to be a capability inherent with installation of the cameras as proposed and could be so used by any future owner of the premises, because any planning approval that may be granted runs with the land, not with the particular original applicant.
67 The appropriateness of surveillance involving a party filming and recording of other parties' residential private property is, in the opinion of the Tribunal, a legitimate and proper planning consideration. The concept of domestic privacy is well identified as being a planning concern and is appropriately regulated under the Codes in terms of building design requirements.
68 The assessment of the appropriateness of a specialised surveillance and recording facility in a residential environment should logically be an extension of the principles of assessing privacy protection applied by the Codes, even though the particular development of a multi-function pole is not, itself, captured by the regulatory provisions of the Codes.
69 The Codes, of course, recognise the need to protect the privacy of habitable spaces and outdoor living areas from overlooking a neighbouring dwelling. In the case of the potential for overlooking and surveillance from the cameras on the multi-function pole, there should be a similar expectation for protection of the privacy of habitable spaces and outdoor living areas of neighbouring properties.
70 The cameras on the multi-function pole are mounted at the top, at a height of 8 metres. The height is well above the roof line of the applicant's house.
71 The Tribunal was informed by the applicant that the cameras are remotely controlled and would appear from their high positioning to have, if desired, a very extensive arc of vision. Coupled with powerful telescopic or 'zoom' lenses that can discern distant detail, there is, in the Tribunal's estimation, a potential for the cameras to be used for intrusive viewing of neighbouring residential properties.
72 It is not the case that there is any such intention of viewing private properties by the applicant, who has been at pains to explain the legitimate purpose of pursuing security and protection of his family and property.
73 The Tribunal, however, must take into account that any approval of the pole and cameras runs with the land, not with the applicant. Accordingly, any decision must be based on assessment of the physical capability and specifications of the equipment, not on the undertakings or intentions of the applicant.
74 No one can guarantee the use of such surveillance equipment by any future owner of the house.
75 The Tribunal will, therefore, seek to ensure the neighbours' right of privacy is protected before favouring the applicant's interest in the pursuit of street surveillance.
76 Thus, the Tribunal finds that the proposed use of the multi-function pole for mounting and operating surveillance cameras is an unacceptable potential compromise of privacy of the local residents and would also, therefore, be detrimental to the amenity of the neighbourhood.
77 The Tribunal was advised that the proposed floodlights mounted on the pole are designed to illuminate the whole of the front yard of the applicant's property. The lights are switched on in the evening and off at dawn. The lighting is substantially confined within the applicant's property boundary. The applicant advised that flood lighting such as this is not uncommon in the locality and occurs at Council and other facilities.
78 The Tribunal is of the view that while such illumination may be seen as excessive by some, provided it is compliant with the relevant Australian Standard AS4282-1997 regarding light spill, there would appear to be no sound ground for objection to this aspect of the proposal.
79 Summarising this analysis of the issues, the Tribunal finds that:
1. The proposal does require planning approval and must be considered on its merits.
2. The proposal by virtue of its height, bulk and location is not considered to be inconsistent with the local streetscape nor does it offend the visual amenity of the area.
3. Subject to compliance with the relevant AS Standards, the proposal for floodlighting is deemed acceptable.
4. The use of cameras designed to be mounted on the pole for surveillance purposes is found to be unacceptable because of the capability of the cameras (though not intended), to be used to compromise the reasonably expected privacy of neighbouring residential premises.
80 It remains to consider whether, in the circumstances of the Tribunal's analysis and findings, the proposal might warrant an approval, conditional upon either the removal of the cameras, or the physical limitation of the cameras' vision in such a way that curtails their capacity to view and record any private habitable spaces or private outdoor areas on neighbouring properties.
81 It is considered inappropriate to contemplate a conditional approval, however, because the cameras are the prime and integral purpose of the multifunction pole. The pole has been specifically designed to mount the cameras at the 8 metre height for the purpose of surveillance.
82 The Tribunal also doubts that there is any practical means of constraining, and independently monitoring, any conditionally imposed mechanism to continuously limit the viewing and recording capability of the cameras as they are designed to be mounted on the pole.
83 In such a circumstance, a conditional approval is not considered to be a prudent course of action.
Conclusion
84 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the development application for a multifunction (camera, lights and flag) pole at No 18 (Lot 402) Mell Road, Spearwood should be dismissed.
Order
85 The Tribunal therefore makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 10 April 2014 to refuse development approval for a multifunction (camera, lights and flag) pole at No 18 (Lot 402) Mell Road, Spearwood is affirmed.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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