Bielawski and City Of Bayswater - [2010] WASAT 103

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)
PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BIELAWSKI and CITY OF BAYSWATER [2010] WASAT 103

MEMBER: MS M CONNOR (MEMBER)

HEARD: 7 JULY 2010

DELIVERED : 16 JULY 2010

FILE NO/S: DR 99 of 2010
CC 415 of 2010

BETWEEN: MARISSA BIELAWSKI
ADAM BIELAWSKI
SCOTT MALKIN
Applicants
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning Direction to stop and not recommence Boundary/parapet wall not constructed in accordance with approved plan Height of boundary/parapet wall Whether 'as constructed' wall is noncompliant Site levels incorrectly reflected on elevation plan Effect of error Factor to be considered in whether a Direction should be given

Building Notice to alter the building to remove the cause of objection Boundary/parapet wall not constructed in accordance with approved plan Building plans reflect development approval plans Whether 'as constructed' wall is noncompliant

Legislation:

Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401
Planning and Development Act 2005 (WA), s 214

Result:

The application for review relating to DR 99 of 2010 is allowed and the decision of the respondent is set aside and the Directions are revoked
The application for review relating to CC 415 of 2010 is allowed and the decision of the respondent is set aside and the Notices are revoked

Category: B

Representation:

Counsel:

Applicants: Ms M Bielawski (Representative)
Respondent: Mr T Bush (Representative)

Solicitors:

Applicants: N/A
Respondent: N/A

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

Drake and City of South Perth & Anor [2005] WASAT 271

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Marissa and Adam Bielawski, the owners of No 23 Watervista Place, Maylands, were granted planning approval by the City of Bayswater to construct a two storey dwelling on the subject land in 2008. A subsequent building licence was issued for the development. Scott Malkin was nominated as the registered builder. A dispute arose between the parties as to whether the boundary/parapet wall of the garage had been constructed in accordance with the approved plans. The dispute involved the first 2 metres of the boundary/parapet wall, which, according to the City of Bayswater, was 0.169 metres higher than the approved height of 3.121 metres.
The City of Bayswater issued Directions pursuant to s 214 of the Planning and Development Act 2005 (WA) and notices pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) to Mr and Mrs Bielawski as owners and Mr Malkin as the registered builder. This proceeding involves the review of the Directions and Notices by the State Administrative Tribunal.
The first issue determined by the Tribunal was whether there was any noncompliance with the approved plans. The Tribunal found that, although the existing ground level was not correctly reflected on the west elevation plan, the effect of this error did not affect the height of the wall relative to the finished floor level of the garage and, as such, did not affect the overall dimensions of the 'as approved' wall. The Tribunal found that the 'as constructed' wall was authorised by the approved plans.
Notwithstanding the above finding, the Tribunal considered whether, in the exercise of discretion, the Directions and Notices should be given. The Tribunal discussed the relevant test for the exercise of discretion under such circumstances and concluded that, on balance, the impacts resulting from the additional height of the wall did not warrant the expense and inconvenience involved in remedying the situation in this instance. The applications for review were allowed and the decisions to issue the Directions and the Notices were set aside and the notices revoked.

The proceedings

There are two applications for determination in these proceedings. Matter DR 99 of 2010 is an application to set aside Directions issued by the City of Bayswater (respondent or City) to Marissa and Adam Bielawski as owners of No 23 (Lot 27) Watervista Place, Maylands (subject land) and Scott Malkin as the registered builder of the 'development', pursuant to s 214 of the Planning and Development Act 2005 (WA) (PD Act). The Directions requires the applicants to stop and not recommence the 'development', which is described in the notices as 'the construction of a two storey single dwelling with garage parapet wall and meterbox'. The particulars of the contravention are described in item 2 of the Schedule attached to the Directions as 'the development is being carried out not in accordance with the planning approval DA070655 of the City issued on 7 April 2008 and therefore being in contravention of clause 3.1.1 of TPS 24, in particular[,] the height of the parapet/boundary wall and separation of meterbox from adjoining property at No 21 Watervista Place, Maylands'.
The other proceeding, matter CC 415 of 2010, is an application to set aside Notices issued by the City of Bayswater (respondent or City) to Marissa and Adam Bielawski and Scott Malkin (applicants), pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (LG Act). The Notices require the applicants to alter the 'building' to remove the objection. The 'building' is described in item 1 of the Notices as 'a brick boundary wall on the north boundary of the Land', the objection being that 'the construction of the boundary wall was not constructed in accordance with BA080889 and in the opinion of the City is not in compliance with the approved Plan'.

Issue

The Direction notices identified two areas of non-compliance with approved plans, that being the boundary/parapet wall (wall) and the meter box. Paragraph 2.18 of the respondent's statement of issues, facts and contentions acknowledges that the wall supporting the meter box has been relocated and is considered to be positioned as per the approved plans. The respondent at the hearing confirmed that the meter box was no longer in issue. The respondent also confirmed that the building licence plans reflected the development approval plans, and accepted that, if the wall was found to be compliant with the development approval plans, there was no contest about whether the wall complied with the building licence plans. The respondent further agreed that, if the Directions are set aside, then it follows that the Notices should also be set aside. Given this position, the Tribunal, in determining this matter, will primarily focus on the development approval plans and the Directions, and will address the Notices based on its findings in relation to the Directions.
In relation to the remaining issue, the respondent contended that the first 2 metre section of the existing wall is 0.169 metre higher than the approved height of 3.121 metres. The respondent submitted that the additional height impacts on the amenity of the neighbour of the adjoining property, and its appearance is considered to be unsightly.
Mr Warren Lance, who resides at No 21 Watervista Place, Maylands (the adjoining property) was called to give evidence on behalf of the respondent. The wall in issue is constructed along the common boundary of the two properties. Mr Lance is aggrieved by the impacts of the wall, in particular, its relationship with his study, as it significantly reduces his use and enjoyment of that room. Mr Lance, at the hearing, produced some photographs to demonstrate the impact of the wall on his property. One of the photographs shows the outlook from the study, which can be described as a view which encompasses some sparse vegetation, a dividing fence and the wall. In his evidence, Mr Lance attempted to bring the whole of the wall into question and sought to have the height and length of the wall reduced.
As explained to Mr Lance, the Tribunal's jurisdiction in this matter is confined to whether there is noncompliance with approved plans and what action, if any, should be taken to rectify any noncompliance. Mr Lance, in effect, was seeking to challenge the original development approval, which cannot be done in this proceeding.

Details of plans approved

The plans that were approved as part of planning approval DR070655 issued by the City included a site plan which showed spot levels of the existing ground level and finished floor levels of the proposed dwelling, floor plans, elevation plans and sections.
The wall forms part of the garage of the dwelling and is set back 4.6 metres from the front boundary, extending 8 metres along the common boundary with the adjoining property. A spot level of 4.88 is indicated at the commencement of the wall and a further spot level of 5.14 is shown approximately at midpoint along the wall. The finished floor level for the garage is shown as 4.143. This information reveals that, at these two points, the finished floor level of the garage is between 737 millimetres and 997 millimetres below existing ground level.
The west elevation plan shows the existing ground level as being level, and indicates the lower level garage and the height of the wall in relation to that level. The wall height is shown at midpoint to be 3.121 metres and, as the ground level is shown as unvarying, the wall height at the commencement of the wall is also taken to be 3.121 metres. The finished floor level of the garage appears to be of equal distance from existing ground level along the entire length of the wall.
As acknowledged by the respondent, the plans that form part of planning approval BA080889 reflect the same details contained in the development approval plans, and include a crosssection plan (referred to as section bb), which identifies the wall height at 3.086 metres above the existing ground level of 5.14 metres. This section also shows the height of the wall above the top of the parapet of the adjoining property as 1.286 metres.

Whether there is non-compliance with the approved plans

The respondent asserted that the 'as constructed' wall was noncompliant with the approved plans. In order to determine whether there was any noncompliance, an 'as constructed' survey was undertaken to confirm the height of the wall. The first survey plan shows the highest point of the garage roof as 3.99 metres above the finished floor level of the garage (based on a crosssection through the subject land) and that the difference between the relative level (RL) of the roof of the parapet on the adjoining property to the RL of the roof on the subject land is 1.26 metres. The approved building plans show this to be 1.286 metres, which is 0.0286 metre below the approved height.
A further survey plan was carried out to show the height of the wall above the garage floor level based on a cross-section through the subject land and the adjoining property. This survey established that the wall was 4.03 metres above the garage floor level of 4.14 RL. This corresponds with the approved finished floor level of garage shown in both the development and building plans.
Based on this information, the respondent asserted that the first 2 metres of the wall is 0.169 metre (at the commencement of the wall) diminishing to zero, higher than the approved height of 3.121 metres. This calculation is based on height above existing ground level and not from the finished floor level of the garage.
An analysis of the plans reveals that the existing ground level is inaccurately reflected on the west elevation plan. The effect of this error is that the plans show that the wall height of 3.121 metres is constant relative to the ground level for the entire length of the wall where, in fact, the wall height should vary as a consequence of the level difference of the existing ground level. However, this error does not affect the height of the wall relative to the finished floor level of the garage and, as such, does not affect the overall dimensions of the 'as approved' wall. Given that is there is no specific condition on the approval limiting the height of the wall to a maximum of 3.121 metres above existing ground level along any point of the wall, the Tribunal finds that the 'as constructed' wall is authorised by the approved plans.
If I am wrong in that finding and the height of the wall is noncompliant with the approved plans, I have proceeded to consider whether or not the direction issued by the respondent should be affirmed or set aside.
Section 214 of the PD Act confers a discretion, if development is undertaken in contravention of a planning scheme, as to whether to give a Direction to the owner or any other person who undertakes the development and, if it decides to give a Direction, as to its terms. However, s 214 of the PD Act is silent in relation to the factors which the responsible authority should consider when exercising its discretion.
As the Tribunal observed in Drake and City of South Perth & Anor [2005] WASAT 271 (Drake) at [92], the factors which guide or inform the exercise of discretion cannot be exhaustively stated. It would be impossible and inappropriate to attempt to do so.
However, at [93] [97] in Drake, the Tribunal identified five important matters for consideration in the exercise of the discretion. These considerations are as follows:
•it is in the public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that, normally, those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity;
•the impact of the contravention of the Scheme on the affected locality and environment;
•the factual circumstances in which the contravention of the Scheme took place;
•the time which has elapsed since the development was undertaken in contravention of the Scheme; and
•the expense and inconvenience which would be involved in remedying the contravention of the Scheme.
In considering the above matters and the circumstances of this particular case, the Tribunal considers that the application for review of the Directions should be allowed and the Directions requiring the applicants to stop and not recommence the 'development' should be set aside. The Tribunal's reasoning is set out below.
It was established during the hearing that the rectification of the alleged 'noncompliance' would require the removal of one row of brickwork for the first 2 metres of the wall. Mr Malkin described to the Tribunal the problems in remedying the situation, given the design of the dwelling and location of electrical subboard. He explained that the entire rainfall collected on the roof discharges into the large box gutter located adjacent to the wall, and that, reducing the wall height will result in the need to substantially redesign, and would involve strengthening the gutter. He expressed a concern that any change to the existing box gutter would impact greatly on the waterproofing and structural integrity of the building. Mr Malkin's evidence was not challenged by the respondent.
The Tribunal considers that the 'over height' portion of the wall as identified by the respondent has a negligible impact on the adjoining property. The section of the wall in question adjoins the forward section of the garage on the adjoining property and does not impinge on solar access or have any undue impact on the amenity of this property. Although Mr Lance strongly advocated that the wall adversely affected the use and enjoyment of his study, he did admit that the modification of the wall for the 2 metres, as required by the respondent, would not have any effect on reducing the negative impacts on the study. According to Mr Lance, the only effect would be to 'reduce part of the eyesore at the front of the wall'. A view of this portion of the wall is obtained from the street and the front setback area of the adjoining property. The Tribunal does not consider that there will be any discernable difference to the overall view from these areas if the wall is modified.
The Tribunal does not consider the impacts resulting from the additional height of the wall to warrant the expense and inconvenience involved in remedying the situation and, as such, in exercising of discretion, does not consider the Directions should be issued. Given this finding, and as it is accepted that the approved building plans reflect the approved development plans, it follows that the decision to issue the Notices should also be set aside and the Notices revoked.

Orders

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

DR 99 of 2010

1.The application for review is allowed.
2.The decisions of the respondent to issue the Directions under s 214 of the Planning and Development Act 2005 (WA) to Marissa and Adam Bielawski and Scott Malkin are set aside.
3.The Directions dated 11 March 2010 are hereby revoked.

CC 415 of 2010

1.The application for review is allowed.
2.The decision of the respondent to issue the Notices under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) to Marissa and Adam Bielawski and Scott Malkin are set aside.
3.The Notices dated 11 March 2010 are hereby revoked.

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER