BOTTECCHIA and TOWN OF VINCENT
[2008] WASAT 19
•4 FEBRUARY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BOTTECCHIA and TOWN OF VINCENT [2008] WASAT 19
MEMBER: JUSTICE M L BARKER (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 4 FEBRUARY 2008
FILE NO/S: DR 449 of 2007
BETWEEN: PETER BOTTECCHIA
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 Whether any question of law raised
Legislation:
Planning and Development Act 2005 (WA), s 244, s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.1A1, cl 3.3.1P1
State Administrative Tribunal Act 2004 (WA), s 3(1)
Result:
Application for review dismissed
Determination of Tribunal in DR 197 of 2007 affirmed
Category: B
Representation:
Counsel:
Applicant: Mr SJ Bain (Acting as Agent)
Respondent: Mr R Rasiah (Public Sector Employee)
Solicitors:
Applicant: SJB Planning and Urban Design (Town Planners)
Respondent: Town of Vincent
Case(s) referred to in decision(s):
Bottecchia and Town of Vincent [2007] WASAT 299
Williams and Western Australian Planning Commission [2005] WASAT 10
REASONS FOR DECISION OF THE PRESIDENT:
Summary of President's decision
Mr Bottecchia sought review by the President of a determination of the Tribunal in which it required that the side walls of a proposed second storey addition to a house should be set back by an additional 0.4 metre and 0.5 metre. However, the application for review did not raise any question of law concerning the determination. The application for review was dismissed and the determination of the Tribunal was affirmed.
Application for review by President
Mr P Bottecchia has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 21 November 2007 in which the Tribunal imposed a condition of development approval requiring that the side walls of a proposed second storey addition to a house at No 5 Leake Street, North Perth (site) should be set back by a minimum of 2.0 metres from the side boundaries - see Bottecchia and Town of Vincent [2007] WASAT 299. In effect, the condition required that the side setbacks should be increased by 0.4 metre and 0.5 metre respectively from the setbacks proposed by Mr Bottecchia.
Section 244 of the PD Act enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr A Ednie-Brown, who is not a legally qualified member. However, no question of law concerning the determination is raised in the review. The Tribunal did not err in law in any respect in the determination and came to a decision which was reasonably open. The application for review by the President should therefore be dismissed.
Background
Mr Bottecchia applied to the Town of Vincent (Town) for development approval for additions to his house. On 23 April 2007, the Town granted development approval subject to conditions which included a condition requiring that "the upper floor southern wall of new bedroom 2 being set back a minimum of 2.0 metres from the southern side boundary" (condition (iii)).
On 25 May 2007, Mr Bottecchia sought review by the Tribunal under s 252(1) of the PD Act of the Town's decision to grant conditional development approval and, in particular, sought the deletion of condition (iii).
It subsequently came to the attention of Mr Bottecchia's consultant town planner that condition (iii), as imposed by the Town, contained a mistake, because it referred to the setback from the southern side boundary, whereas the Town had intended it to apply to the northern side boundary. At a directions hearing on 25 July 2007 convened by the Tribunal in order to clarify the parties' positions, the Town's representative agreed that the condition, as imposed by the Town, contained this mistake. However, he indicated that, on further reflection, the Town's position was that the condition should require a minimum setback of 2.0 metres from both the northern and southern side boundaries.
The Tribunal noted the Town's position and, having regard to the change in position and the potential consequence to Mr Bottecchia, which was not known by him when the proceedings were commenced, granted Mr Bottecchia leave, on the Tribunal's own initiative, to withdraw the proceedings by 3 August 2007. Mr Bottecchia did not withdraw the proceedings and the matter, therefore, proceeded to a determination entirely on the documents before Senior Sessional Member Ednie-Brown, following a site view by the Senior Sessional Member accompanied by the parties on 15 August 2007.
On 21 November 2007, Senior Sessional Member Ednie-Brown delivered a written decision.
At [68] of the reasons for decision, the Tribunal found that the proposed 1.5 metre and 1.6 metre setbacks of the upper floor side walls from the side boundaries of the site did not conform to the Acceptable Development provision for boundary setbacks in cl 3.3.1A1 of the Residential Design Codes of Western Australia (2002) (Codes), which contemplated a setback of 2.2 metres.
At [44], the Tribunal set out the corresponding Performance Criteria for boundary setbacks stated in cl 3.3.1P1 of the Codes. The Performance Criteria include the following:
"Buildings set back from boundaries other than street boundaries so as to:
…
•assist in ameliorating the impacts of building bulk on adjoining properties;
…"
The Tribunal considered the parties' evidence and submissions in relation to whether the proposed development conforms to the Performance Criteria at [45] [49] and [60] [63], and addressed this issue at [65] [75]. At [67], the Tribunal found "… that the proposed additions will impose appreciable constraints on the visual and general amenity of the adjoining properties". The Tribunal concluded, at [75], as follows:
"In this respect the Tribunal concludes that an extensive development of two storeys as proposed, on the subject land of limited size, constitutes a development potentially having an undesirable impact on the adjoining properties. The setback requirements of the Codes are designed to reduce adverse impact on adjoining properties in such circumstances and are also designed to ameliorate the impacts of overcrowding on the adjoining properties. The Tribunal concludes that such is the case, significantly for No 3, but also for No 7, in the degree to which bulk and scale of the proposed development contributes to visual confinement and loss of general amenity. Therefore, for the reasons stated above, the Tribunal is not satisfied that the variations/discretions sought satisfy the relevant Performance Criteria of the Codes."
The Tribunal, in effect, determined that the Town was correct in requiring additional setbacks of 0.4 metre and 0.5 metre in the circumstances of the case in order to ensure that the proposed development conforms to the Performance Criteria in relation to side setbacks.
The Tribunal, therefore, dismissed Mr Bottecchia's application for review and confirmed condition (iii), as imposed by the Town, with the variation that it applies to upper level setbacks to both the southern and northern side boundaries.
"Grounds" for review by President
Mr Bottecchia seeks to raise the following "grounds" for review:
"The grounds for the request are that undue weight has been given to objections by neighbours and insufficient weight given to the provisions of cl 3.3.1P1 of the [Codes], and that the roof and wall heights remain unchanged if the setbacks are increased.
'Overcrowding' is not relevant to consideration of the matter."
Consideration of application for review
Mr Bottecchia's "grounds" do not raise any question of law.
Written objections by neighbours given to a local government authority in response to advertising of a proposed development are a relevant matter for consideration by the Tribunal on review. The weight to be given to the objections was a matter entirely for the Senior Sessional Member; Williams and Western Australian Planning Commission [2005] WASAT 10 at [17]. In any case, the Tribunal said at [62] that "[t]he objections add little to, other than to strongly reinforce, the position advanced by the [Town]".
As noted earlier, the Tribunal identified and addressed the Performance Criteria in cl 3.3.1P1 of the Codes. It was open to the Tribunal to find, as it did, that the proposed development does not conform to the Performance Criteria because the building would not be set back from the side boundaries so as to assist in ameliorating the impacts of building bulk on adjoining properties.
Finally, the Tribunal's reference to "overcrowding" was made in the context of explaining one of the planning objectives underlying the setback requirements of the Codes. It did not identify "overcrowding" as a relevant matter for consideration in its own right, but rather as a matter that the Performance Criteria in relation to side setbacks seek to avoid, as they undoubtedly do.
Conclusion
Mr Bottecchia's grounds for review do not raise any question of law concerning the determination. The Tribunal did not err in law in any respect. Its findings and its reasons for findings were reasonably open on the evidence before it.
It follows that the application for review by the President should be dismissed and the determination of the Tribunal should be affirmed.
Orders
I make the following orders:
1.The application for review is dismissed.
2.The determination of the Tribunal made on 21 November 2007 in proceedings DR 197 of 2007 is affirmed.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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