BOOTH and TOWN OF EAST FREMANTLE
[2008] WASAT 155
•30 JUNE 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BOOTH and TOWN OF EAST FREMANTLE [2008] WASAT 155
MEMBER: MR M SPILLANE (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 30 JUNE 2008
FILE NO/S: DR 348 of 2007
BETWEEN: SUE BOOTH
Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Town planning - Conditions of subdivision - Screening along the boundary to the satisfaction of Council - Is screening necessary - Is condition fairly and reasonably related to the development
Legislation:
Residential Design Codes of Western Australia (2008), cl 6.8, cl 6.10
Planning and Development Act 2005 (WA), s 252(1)
Town of East Fremantle Town Planning Scheme No 3, cl 10.2
State Administrative Tribunal Act 2004 (WA), s 53, s 55, s 60(2)
Result:
Application for review allowed in part
Condition varied
Category: B
Representation:
Counsel:
Applicant: Mr S Allerding (Acting as Agent)
Respondent: Mr C Warrener (Acting as Agent)
Solicitors:
Applicant: Allerding & Associates (Town Planners)
Respondent: Town of East Fremantle
Case(s) referred to in decision(s):
Baumgartner and City of Joondalup [2005] WASAT 234
Kellet and Town of Vincent [2007] WASAT 155
Newbury District Council v Secretary of State for Environment [1981] AC 578
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mrs Booth applied to the State Administrative Tribunal for a review of a decision of the Town of East Fremantle relating to a condition on a retrospective planning approval for variations to a front fence and bin enclosure.
The retrospective approval granted was in respect of departures from an original development approval for a dwelling at the site.
The applicant argued that the condition requiring screening within the entire setback of the original development was not properly connected to issues arising from the present development which was limited to the front fence and bin enclosure.
The respondent contended that the condition was necessary as a result of the use of the new bin enclosure area.
The State Administrative Tribunal found that although a condition for screening was necessary, the condition imposed went too far and the State Administrative Tribunal varied the condition to relate it only to the proposed bin enclosure area.
Introduction
These proceedings involve an application brought by Mrs Sue Booth (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for a review of Council's decision to impose condition 2 to its planning approval dated 18 December 2007 which stated:
"The applicant/owner apply screening along the south side boundary in the front set back to the satisfaction of Council."
Site and locality
The site is located at 13 Anguin Street, East Fremantle (site) and is a river facing property located on the ridge above the Left Bank Hotel.
The site is substantially elevated above the adjoining property at 11 Anguin Street.
Background
On 2 March 2004 Council granted conditional approval for additions to a two storey house at the site.
On 10 June 2005, approval was granted under delegated authority for amendments to the plans that were the subject of Council's approval of 2 March 2004.
On 2 August 2005, a demolition licence was issued for a house then existing on the site.
On 4 November 2005, a building licence was issued for the current dwelling. The plan submitted for the building licence included specifications for a front fence which complied with Council's fencing policy.
On 12 June 2007, the applicant submitted a request for a variation to the building licence in respect of the front fence. The proposed variation involved construction of solid fence panels and a purpose built bin enclosure area adjacent to the front south side boundary common with 11 Anguin Street.
On 28 June 2007, the applicant lodged an application for retrospective planning approval for the unauthorised works to the front fence including the bin enclosure.
On 18 September 2007, planning approval in the following terms was granted to the applicant:
"Council at its meeting held on 18 September 2007 allowed that pursuant to Town Planning Scheme No 3 sub-clause 8.4, 1 Council grant planning approval for modifications to the front fence at 13 Anguin Street in accordance with the plans [... that the Town] received on 31 August 2007 subject to the following conditions:
1.a retrospective acknowledgement being obtained from Council's Building Surveyor for the unauthorised works to the front fence;
2.the applicant/owner is to provide screening along the south side boundary and front setback to the satisfaction of Council; and
3.this planning approval to remain valid for a period of 24 months from the date of this approval."
On 18 October 2007, an application to review Council's decision was received by the State Administrative Tribunal (Tribunal) from the applicant in the following terms:
"The land owner seeks to appeal condition 2 of the City's Issue of Approval pertaining to additional screening on the south side boundary and have the matter overturned on appeal allowing the approval to be finalised with no further development requirements."
It is noted that when the application for review was initially lodged, there were other issues in respect of which an application for review was also made. However, by order of the Tribunal on 24 January 2008, those other matters were withdrawn and by order of the Tribunal dated 25 February 2008 it was ordered that:
"Condition 2 of the Town of East Fremantle's decision of 18 September 2007 related to the modifications to the front fence at No 13 Anguin Street, East Fremantle stands as the issue in contention in these proceedings."
It was also ordered by the Tribunal that the matter was to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and that the parties meet on site, at a time to be arranged, with the Tribunal member dealing with the matter for the purpose of a viewing.
That viewing took place at 8 am on Tuesday, 10 June 2008 in the presence of Mrs Sue Booth, the applicant, and Mr Chris Warrener the town planner for the Town of East Fremantle (respondent).
Applicant's submissions
The applicant furnished two witness statements in support of the application; one from Steven Allerding, an independent town planner and a director of Allerding & Associates Town Planning Consultants, and a second from the applicant. Both witness statements contained attachments, some of which will be referred to in the course of these reasons.
In his statement of evidence Mr Allerding identified two issues for consideration, namely:
1)Is the requirement for screening necessary?
2)Does the condition fairly and reasonably relate to the development?
In respect to the first issue, Mr Allerding submitted that the return wall and the bin enclosure area exceeds the height provided by the existing limestone wall between 11 and 13 Anguin Street, and in his opinion improves the previous situation associated with the prospect of overlooking the adjoining property.
Mr Allerding further stated that the Residential Design Codes of Western Australia (2008) (R Codes) do not come into consideration because the bin enclosure is not a habitable room or outdoor living area but in any event the performance criteria in the R Codes would, in his opinion, be easily met by virtues of:
1)Positioning of spaces between the development site and the adjoining property, especially in light of the fact that the enclosure is not a high use or habitable area.
2)Sufficient screening is provided (and improved from that approved by Council).
3)The lesser need to prevent overlooking of front gardens.
In respect of the second issue raised, whether the condition fairly and reasonably related to the development, Mr Allerding contended that the requirement by Council to extend screening further along the southern boundary has no relationship to the matter under review.
He stated that the area in respect of which retrospective approval is sought relates to a small front corner of the site and that the development under review does not give rise to the need for the screening along the entire southern boundary setback as sought by Council.
Mr Allerding explained that condition 2 sought screening along the southern boundary for the entire primary setback of the dwelling, which is itself set back well past the development under review.
Mr Allerding referred the Tribunal to the decisions of Baumgartner and City of Joondalup [2005] WASAT 234 (Baumgartner) and Kellet and Town of Vincent [2007] WASAT 155 (Kellet).
Those cases, Mr Allerding submitted, supported the view that to use the redevelopment of the small section of the front corner of the review site as the basis for a condition for the entire front setback of the primary development is unreasonable.
Evidence of the applicant
The applicant, in her statement of evidence, goes into some detail about the history of the applications including the approval of the main dwelling and the subsequent approval with conditions of the development the subject of this review.
The applicant outlined Council's dealings with the matter and quotes from various reports to Council and Council Minutes. In particular, the applicant dealt with an assumption which the Tribunal will refer to later in the respondent's evidence as to the route the applicant might take to the bin enclosure area and states:
"It has been suggested that rubbish will be delivered to the bin enclosure via the front door, and this justifies screening from the front door to the bin enclosure. This assumption is unsupported, and is entirely incorrect. Like most families, we do not choose to carry kitchen rubbish all the way through the most formal sections of the household, risking spillage and soiling of quality carpet/fittings. Instead, the route through the courtyard adjoining the kitchen and via the northern pathways [will be] used for the delivery of rubbish to the bins and most domestic traffic ..."
Respondent's evidence
Mr Chris Warrener the town planner for the respondent furnished a statement of evidence together with attachments and confirmed that:
"The review of the decision now comprises one matter:-
The condition requiring screening along the south side boundary and the front setback to the satisfaction of Council".
In his statement of evidence, Mr Warrener referred to some matters which arose during the mediation process before the Tribunal. It should be noted that s 55 of the SAT Act states:
"Evidence of anything said or done in the course of a ... mediation is not admissible at a later stage of the proceedings unless -
(a)all parties agree to the admission of the evidence:
(b)it is evidence of directions given or orders made at a compulsory conference or mediation or the reasons for those directions or orders; or
(c)it is relevant to -
(i)a proceeding for an offence in relation to the giving of false or misleading information;
(ii)a proceeding under section 100; or
(iii)a proceeding in relation to an order made under section 53(b)(i)."
The matters raised by Mr Warrener do not come within any of the exceptions to s 53 of the SAT Act are therefore not admissible and have not been considered by the Tribunal in the course of these reasons.
Mr Warrener identified the issue he sees as relevant in the application for review as:
"Whether it is reasonable for the Town to have imposed the following condition to the approval to the unauthorised works for a front fence at 13 Anguin Street:
...
b)the applicant/owner supply screening along the south side boundary in the front setback to the satisfaction to Council."
As to Mr Allerding's suggestion that the condition does not fairly and reasonably relate to the development in question, Mr Warrener stated:
"It is understood that the accepted tests are:
(i)the condition is for a planning purpose and not for any ulterior purpose.
(ii)the condition reasonably and favourably relates to the development permitted.
(iii)the condition is not so unreasonable that no reasonable planning authority could have imposed it."
Mr Warrener submitted that those criteria are met in this case and went on to state:
"The amenity and privacy of the front yard at 11 Anguin Street are considered to be detrimentally effected by the unauthorised works to the front fence, which include a bin enclosure which overlooks an outdoor spa which pre-existed the unauthorised works.
It is considered reasonable under the circumstances to impose a condition requiring screening to ameliorate the adverse impact and privacy which the bin enclosure gives rise to, given that a person standing in the bin enclosure area, if without screening will be able to look straight down upon the spa at 11 Anguin Street.
Given that access to the proposed bin enclosure will be via a route which, from the front porch area of 13 Anguin Street to the bin enclosure, involves overlooking at every point of that route, it is considered reasonable that the screen extends from the front porch to the bin enclosure."
Mr Warrener confirmed that the owners of 11 Anguin Street objected to the proposed variations to the front fence and that in response Council imposed the condition requiring the installation of screening to protect the privacy and amenity of the neighbour's property.
Consideration of issues
Must the condition relate to the development?
As stated by the applicant in its submissions, the Tribunal has considered this question in the past, particularly in the cases of Baumgartner and Kellett.
In Baumgartner at [33], the Tribunal stated:
"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."
The present application is similar in many respects to the one under consideration in the Baumgartner case in that the application before the respondent was for retrospective planning approval for variations or departures from the original planning approval.
The test for the validity for conditions as articulated in Newbury District Council v Secretary of State for Environment [1981] AC 578 were set out by the Tribunal in Kellet at [19] where it stated:
"In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the tests for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
'A condition attached to a grant of planning permission will not be valid therefore unless:
(1)The condition is for a planning purpose and not for any ulterior purpose. ...
(2)The condition reasonably and fairly relates to the development permitted.
(3)The condition is not so unreasonable that no reasonable planning authority could have imposed it.' "
It is clear therefore, that any condition must reasonably and fairly relate to the development applied for, which in the present case, is an application for planning approval for a noncompliant front fence which incorporates a new bin enclosure area.
Does the relevant condition properly relate to the development?
The respondent submitted that the amenity and privacy of the front yard at 11 Anguin Street, and in particular the outdoor spa, are considered to be detrimentally affected by the development, which includes a bin enclosure area and identified two reasons for which it considered it reasonable to impose the condition under review.
The first was to ameliorate the adverse impact on privacy which it alleged the bin enclosure gives rise to, when a person standing in the bin enclosure area, without screening, will be able to look straight down on the spa at 11 Anguin Street.
The second reason was that access to the proposed bin enclosure would be via a route, from the front porch area of the site to the bin enclosure, which would involve overlooking at every point of that route.
In the Tribunal's opinion, the first of the reasons outlined above relates directly to the development applied for and will be dealt with later.
However, the second reason which hypothesised that the route to the bin enclosure will be via the front porch to the bin enclosure is clearly an assumption on the part of the respondent which is refuted by the applicant.
Furthermore, the route from the front door to the bin enclosure is primarily the same route as that from the front door to the front gate and allows much the same views of the neighbouring property. This fact was clear from the site visit undertaken by the Tribunal on 10 June 2008.
Screening and the need for it, between the front door and the front gate of the site, was a matter no doubt considered and dealt with by the Council in its original approval for the dwelling on the site. The Tribunal is of the view that in the context of this review that part of the condition that seeks to extend the screening from the front door all the way to the bin enclosure area is excessive and cannot be said to fairly and reasonably relate solely to the variations applied for at this time.
Is there requirement for any screening in the present circumstances?
As stated earlier, apart from the submissions and attachments including plans and photographs, the Tribunal also had the benefit of a view of the site on 10 June 2008.
It was clear on that occasion that when one stood in the bin enclosure area, it was, as submitted by the respondent, a simple matter to look straight down upon the spa at 11 Anguin Street.
Mr Allerding in his submissions stated that the R Codes do not come into consideration because the enclosure is not a habitable room or outdoor living area and that in any event, having regard to the performance criteria, it is considered that they would easily be met.
Mr Warrener, for the respondent, stated, "It is noted that, technically speaking, as Mr Allerding has pointed out, the Codes do not apply".
The R Codes are a supplementary policy under State Planning Policy 1 - State Planning Framework and they provide the basis for controlling the siting and design of residential development across Western Australia.
Sources of overlooking are an issue that are particularly dealt with at cl 6.8 of the R Codes and in respect of which the Explanatory Guidelines state:
"Overlooking from areas that are at or close to natural ground level is not subject to control in terms of performance criterion 6.8.1. This applies equally to outdoor living areas and habitable rooms which are less than 0.5 m above natural ground level. The basis for this is that the view shed from such areas can readily be limited by a standard boundary wall or fence.
...
While it may be possible to overlook an adjoining property from many situations, performance criterion 6.8.1 only seeks to control overlooking between:
•active habitable spaces and outdoor living areas of the development site; and
•the habitable rooms and outdoor living areas of the adjoining residential properties."
Outdoor living area is defined in the R Codes as being:
"The area external to a Single House or Grouped Dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use but excludes any area with a dimension of less than one metre minimum dimension or which, by reason of its development or topography, is not readily accessible from the dwelling."
Under that definition, it might in some cases be argued (although it is not in this case) that a bin enclosure area is an area external to a single house used in conjunction with that dwelling and is capable of active use and therefore an "outdoor living area".
However, at cl 6.10 titled "Incidental Development Requirements" the explanatory guidelines of the R Codes do refer to "bin storage" and state:
"Incidental development encompasses development incidental to but either an essential or a frequently occurring feature of residential development. In this category are included:
•outbuildings
•ancillary facilities; and
•external fixtures."
under the heading "Outbuildings" then states:
"... there is a case for relaxed standards for some outbuildings. The criteria should be that they do not detract form the essential functions of private open space, the visual amenity of neighbours or the streetscape. ..."
Under "Ancillary facilities generally" then states:
"For the purposes of the codes, incidental facilities fall into two categories:
•essential facilities, such as clothes drying, general storage and 'rubbish bin storage'; (Tribunal emphasis)
...
These facilities appear not to be problematic in the case of Single Houses, except possibly on very small lots. They can, however, be critical to the amenity of communal developments. Adequate provision for such facilities should be mandatory in all Grouped and Multiple developments."
Under the heading "External fixtures" it states:
"...
All other external fixtures may have greater potential to detract form amenity and streetscape, and should be subject to planning control, and may be the subject of local planning policies."
In all the circumstances, even if the bin enclosure area the subject of this application does not strictly come to be considered under the R Codes, it is clear that the R Codes recognise that facilitates such as bin enclosure areas can be problematic and should be subject to planning control, particularly to protect amenity.
In the Tribunal's view, this is an entirely common sense approach as one of the primary objectives of planning controls including the R Codes and planning schemes is to ensure that residential development occurs in line with community expectations and avoids where possible conflict between properties.
As is stated in the R Codes, the designer and the Council should take into account the effect of the new development on existing or proposed dwellings on adjoining residential properties and the design of new developments should avoid overlooking into adjacent habitable room windows, especially of living rooms, and of balconies, terraces and other outdoor living spaces.
Furthermore, the Town of East Fremantle Town Planning Scheme No 3 under which this development application was considered at cl 10.2 states:
"The local government in considering an application for planning approval is to have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development the subject of the application -
...
•(p) the relationship of the proposal to development on adjoining land or on other land ..."
Findings
Keeping those matters in mind, we come to the circumstances of the present case.
The area for which approval has been granted to use as a bin enclosure will result in ongoing and possibly daily visits to that area by either residents or visitors to the site and the Tribunal is satisfied that a person standing in the bin enclosure area, which is in a highly elevated position above 11 Anguin Street, would be able to look directly down onto the spa in that property.
This is not a satisfactory position and it is in the Tribunal's view, reasonable and in the interests of orderly and proper planning, that some screening be provided along the southern boundary of the site to prevent such overlooking. However, the Tribunal is also satisfied that the present condition regarding screening in the entire primary setback is excessive.
The application for review should therefore be allowed in part. The decision to impose condition 2 should be revoked and substituted with a condition limiting the screening necessary along the southern boundary to a height and distance necessary to prevent overlooking from the immediate vicinity of the bin enclosure area.
What remains is to decide the height and length of such screening and the Tribunal finds that screening at a height of 1.8 metres from the floor of the bin enclosure area, being the standard height for boundary fences, for a distance of 2.8 metres along the southern boundary of the bin enclosure area, as marked on the plan attached to these reasons at Attachment 1 would be adequate and reasonable in the circumstances.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.The decision of the Town of East Fremantle to impose condition 2 to its planning approval dated 18 September 2007 is set aside and condition 2 is revoked and the following condition is substituted in its place:
"2.The applicant/owner is to provide screening along the south side of the bin enclosure area at a height of 1.8 metres and for a distance of 2.8 metres as marked on the plan attached."
Attachment 1
Location of screening to be provided (for purposes of location only and not indicative of measurements)
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
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