BAUMGARTNER and CITY OF JOONDALUP
[2005] WASAT 234
•31 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: BAUMGARTNER and CITY OF JOONDALUP [2005] WASAT 234
MEMBER: MS M CONNOR (MEMBER)
HEARD: 3 JUNE 2005
DELIVERED : 31 AUGUST 2005
FILE NO/S: DR 86 of 2005
BETWEEN: MARINO AND KERRY BAUMGARTNER
Applicants
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Development - Retrospective planning approval - Variations or departures from original planning approval - Whether condition fairly and reasonably relates to the development
Legislation:
Town Planning and Development Act 1928 (WA), s 18(2)(a)
Result:
1. The Application for Review is allowed
2. The decision under review is varied
Category: B
Representation:
Counsel:
Applicants: Self-represented
Respondent: Mr S Allerding (Agent)
Solicitors:
Applicants: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Newbury District Council v Secretary of State for Environment [1981] AC 578
Stein Halvorsen v City of Joondalup and Marino Baumgartner and Kerry Baumgartner [2004] WATPAT 216
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal’s decision
Marino and Kerry Baumgartner applied to the State Administrative Tribunal for review of the decision of the City of Joondalup relating to the imposition of a condition on a retrospective planning approval for additions to a single house. The condition was "[t]he windows to the upper storey deck as marked in red on the approval plan shall achieve compliance with Visual Privacy Clause 3.8.1 A1 of the Residential Design Codes 2002 within 60 days of the date of this decision to the satisfaction of the Manager of Approvals, Planning & Environmental Services".
The planning application for retrospective approval related to variations or departures from the original planning approval granted on 14 March 2003. The applicants contended that the condition required the screening of windows built in accordance with the original planning approval and building licence. The applicants argued that there was no nexus between the condition and the variations applied for.
The respondent asserted that the variations involving the deck area and sundeck enabled the imposition of this condition. The respondent contended that the application should not be considered in terms of the difference between the previous approval and that which is current, but as a fresh application considered on its planning merits.
The Tribunal was not satisfied that the windows as built did not accord with the plans as approved and found that the condition did not fairly and reasonably relate to the variations applied for.
The Tribunal determined that the Application for Review be allowed and the decision under review be varied by the deletion of the condition.
Introduction
This is an application for review of condition (c) imposed by the City of Joondalup (the Respondent) on the development approval issued for "retrospective approval for additions to a single house" on Lot 2 (No 160B) Waterford Drive, Hillarys (the subject land).
The condition under review reads as follows:
"The windows to the upper storey deck as marked in red on the approval plan shall achieve compliance with Visual Privacy Clause 3.8.1 A1 of the Residential Design Codes 2002 within 60 days of the date of this decision to the satisfaction of the Manager of Approvals, Planning & Environmental Services."
Background
There is a considerable history relating to the development of the subject land and it is appropriate that the events leading to this point should be set out in full in order to understand the background to the present planning application.
On 26 November 2002, the applicants lodged with the respondent an application for approval in relation to additions and alterations proposed to be carried out on their property.
The application was referred to the owners of adjoining properties. An objection was received from the owner of No 160A Waterford Drive, Hillarys. Ultimately, on 14 March 2003 the application was approved under delegated authority. This approval was granted subject to the following three conditions:
"1.Fixed obscured screening to a minimum height of 1.6 metres to portion of the southern face of the upper deck as outlined in red on the approved plan.
2.Amendment of the front fence to be visually permeable 1.2 metres above adjoining ground level as defined by the Residential Design Codes.
3.The extension to be wholly contained within the subject property and in accordance with the easement and covenant provisions cited on the certificate of title."
Subsequent to that approval, the owner of No 160A Waterford Drive made representations to the Minister for Planning and Infrastructure relating to the additions and alterations to the dwelling on the subject land. In accordance with s 18(2)(a) of the Town Planning and Development Act1928 (WA) (the Act) as then in force, the Minister referred the representations to the Town Planning Appeal Tribunal for its report and recommendations. The Town Planning Appeal Tribunal in Stein Halvorsen v City of Joondalup and Marino Baumgartner and Kerry Baumgartner [2004] WATPAT 216 found at [41] there had been no failure on the part of the respondent to "enforce effectively the observance of a Town Planning Scheme in or under this Act of any of the provisions of the Scheme".
As a part of the investigations carried out by the respondent in respect of the above matter, it was found that certain aspects of the work that had been carried out in relation to the approval of 14 March 2003 had departed from that approval.
As a consequence, the applicants lodged an application for retrospective approval in relation to variations or departures from the approval granted on 14 March 2003. The application was dealt with by the respondent at its meeting of 23 November 2004, where the Commissioners resolved to "approve the application for retrospective approval dated 1 July 2004 submitted by Modern Home Builders on behalf of Mr & Mrs Baumgartner for additions to a single house" on the subject land subject to the following conditions:
"(a)the boundary wall shall be of clean finish and made good to the satisfaction of the City;
(b)the development must be wholly contained within the land owned by Mr & Mrs Baumgartner;
(c)the northern windows of the deck shall be screened to a minimum height of 1.6 metres in accordance with the Residential Design Codes to prevent overlooking into the neighbouring property;
(d)the southern windows of the deck shall be screened to a minimum height of 1.6 metres in accordance with the Residential Design Codes to prevent overlooking into the neighbouring property;
(e)Front fence to be visually permeable 1.2 metres above the adjoining ground level as defined by the Residential Design Codes."
Pursuant to cl 6.10.2 of the City of Joondalup District Planning Scheme No 2 (DPS 2), the applicants elected to request the respondent to revoke conditions (c) and (d) of the approval. Furthermore, in order to preserve their appeal rights, Mr and Mrs Baumgartner made application to have condition (c) of the decision reviewed by the State Administrative Tribunal (the Tribunal).
Subsequently, the respondent at its meeting of 22 February 2005 reconsidered the conditions and resolved the following:
"1Revokes condition 3(c) of its resolution CJ290-11/04 dated 23 November 2004 for Retrospective Planning Approval Lot 2 (160B) Waterford Drive, Hillarys, viz:
(c)The northern windows of the deck shall be screened to a minimum height of 1.6 metres in accordance with the Residential Design Codes to prevent overlooking into the neighbouring property.
and replaces the condition as follows:
(c)The windows to the upper storey deck as marked in red on the approval plan shall achieve compliance with Visual Privacy Clause 3.8.1 A1l of the Residential Design Codes 2002 within 60 days of the date of this decision to the satisfaction of the Manager of Approvals, Planning & Environmental Services.
2Advises the landowners that the City is unable to consider the request for reconsideration of condition 'D' of resolution CJ290-11/04 dated 23 November 2004, as it is outside the scope of authority granted by Section 6.10.2 of District Planning Scheme No 2."
The proposal
As the building on the subject land was not constructed in accordance with the Development Approval and Building Licence issued for the development, a planning application was made pursuant to cl 6.12 of DPS 2 for retrospective planning approval for the variations or departures from the planning approval granted on 14 March 2004, as specified in the letter from Modern Home Improvers dated 16 July 2004. The application involved a considerable number of variations, many of which are not relevant to this review. The variations of relevance, as asserted by the respondent, are those involving the northern aspect of the deck area and sundeck. These include:
(a)the northern setback of the sundeck is increased by 0.067 metres from 6.753 metres to 6.820 metres;
(b)the length of the deck is increased from 5.0 metres to 5.2 metres and the northern face of the deck is increased from 5.0 metres to 5.7 metres; and
(c)the area of the open sundeck is increased.
Planning framework
The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" with a permitted site density of "R20" under DPS 2.
Clause 6.12 of DPS 2 provides for the granting of planning approval to a development already commenced or carried out regardless of when it was commenced or carried out.
Pursuant to subclause 4.2.3 of the DPS 2, development of land for residential purposes dealt with by the Residential Design Codes 2002 (Design Codes) is to conform to the provisions of those Codes, unless otherwise specified in the Scheme. The respondent considered the proposed variations to the deck area and the sundeck against the provisions contained in Design Element 8 ‑ Privacy of the Design Codes.
Clause 6.8 of DPS 2 specifies the matters that are required to be taken into consideration in the determination of a planning application.
Point at issue
It is the respondent's contention that the variations involving the deck area and sundeck enabled the imposition of condition (c). The respondent contended that the application should not be considered in terms of the difference between the previous approval and that which is current, but as a fresh application to be considered on its planning merits.
The applicants asserted that the variations related to the sundeck and not the deck area as this part of the building had been built in accordance with the original planning approval and building licence and did not form part of the application. The applicants argued that there was no nexus between the condition requiring screening to the windows in the deck area and the variations applied for.
Respondent's arguments
Mr Peter Fitzgerald, a planning consultant, was called by the respondent to give evidence in these proceedings. Mr Fitzgerald in his witness statement expressed that he considered that:
"Council retains the capacity to impose a condition relating to the northern deck window notwithstanding that the window exists and a window was previously approved by Council in that location without condition."
He further added that:
"While it would have been preferable (from a procedural perspective) for Council to have applied an appropriate condition on its original approval, it does not follow that Council is precluded from applying appropriate conditions on any subsequent approval provided that the condition is not onerous, maintains some nexus to the development proposed (and associated issues) and relates to an element of the overall application."
He also argued that a prior approval to a similar application does not infer that the same decision could be achieved by the landowner in perpetuity.
In oral evidence, Mr Fitzgerald implied that whether or not there was any variation to the deck area, and it was his position that there was an angular difference across the length of the total wall and at the point of the windows there was a 20 to 30 centimetres variation, the development should be considered in its entirety and considered on its planning merits.
Given this stance, evidence was produced by him to demonstrate non‑compliance with the provisions contained in Element 8 of the Design Codes and arguments were presented supporting the screening of the windows.
Applicant's arguments
Mr Baumgartner told the Tribunal that the variations to the sundeck resulted from the need to relocate the column to the deck a half a metre from the existing swimming pool to ensure that it was structurally sound.
Mr Baumgartner contended that the condition was unreasonable as it related to a part of the existing building that had been constructed in accordance with the planning approval issued on 14 March 2003 and the subsequent building licence. Mr Baumgartner, in his oral evidence, did not accept that there was an angular difference across the length of the total wall resulting in a 20 to 30 centimetre variation at the windows. He maintained that the variations related to the sundeck only, in that the relocation of the column resulted in the northern elevation being extended by 0.7 metres, which meant the triangular point of the sundeck was setback 6.820 metres. This was 67 millimetres further away from the northern neighbours than originally approved.
Mr Baumgartner argued that the screening of the north facing windows of the deck was never an issue with the original approval and that it was unreasonable to require screening of the same windows 18 months after the original approval, particularly as the windows were built in accordance with the approval.
Findings
There was some contest between the parties during the course of the hearing as to whether there was an angular difference across the total length of the northern wall (deck area and sundeck), which resulted in a 20 to 30 centimetre setback variation at the windows, away from the boundary. On the evidence, the Tribunal is not satisfied that the windows as built do not accord with the plans as approved.
However, if there is an angular difference of the degree alleged, the Tribunal considers such a variation to be an inconsequential variation in that it does not transform the original application and does not alter the impacts resulting from the original approval.
Furthermore, the application before the respondent (and now the Tribunal) is understood to be for retrospective planning approval for variations or departures from the original planning approval. Therefore, it is not open to the respondent to revisit the application in its entirety and consider it afresh, rectifying any issues resulting from the original planning approval through the imposition of conditions on the approval of the variations that are not reasonably related to that development.
A condition of approval can be said to reasonably relate if it arises from changes precipitated by the development. In this instance, the Tribunal is of the view that the condition, requiring the screening of the northern windows, does not fairly and reasonably relate to the variations applied for and therefore fails to meet the second test for the validity of a condition as articulated in Newbury District Council v Secretary of State for Environment[1981] AC 578.
Orders
For the forgoing reasons the Tribunal makes the following orders:
1.The Application for Review is allowed.
2.The decision under review is varied as follows:
(i) condition (c) is deleted.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
__________________________________
MS M CONNOR, MEMBER
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