BOYD and TOWN OF VINCENT
[2007] WASAT 93
•24 APRIL 2007
BOYD and TOWN OF VINCENT [2007] WASAT 93
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 93 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:73/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 24/04/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Determination of Tribunal in Boyd and Town of Vincent [2007] WASAT 35 affirmed | ||
| B | |||
| PDF Version |
| Parties: | JASON BOYD TOWN OF VINCENT |
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 Use characterisation Whether Tribunal may characterise proposed development as "outbuilding" when original decision-maker had characterised development as "garage/workshop additions to existing single house" Whether Tribunal erred in law in determining that proposed development is an "outbuilding" Meaning of "detached from" |
Legislation: | Planning and Development Act 2004 (WA), s 244, s 244(1), s 244(3), s 252(1), s 252(2) Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.10.1, Element 10 State Administrative Tribunal Act 2004 (WA), s 3(1), s 29(1) Town Planning and Development Act 1928 (WA), s 8A(1) |
Case References: | Boyd and Town of Vincent [2007] WASAT 35 The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 |
Orders | The Tribunal makes the following orders:,1. The application for review is dismissed.,2. The determination of the Tribunal in Boyd and Town of Vincent [2007] WASAT 35 is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BOYD and TOWN OF VINCENT [2007] WASAT 93 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 APRIL 2007 FILE NO/S : DR 73 of 2007 BETWEEN : JASON BOYD
- 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 - Use characterisation - Whether Tribunal may characterise proposed development as "outbuilding" when original decision-maker had characterised development as "garage/workshop additions to existing single house" - Whether Tribunal erred in law in determining that proposed development is an "outbuilding" - Meaning of "detached from"
Legislation:
Planning and Development Act 2004 (WA), s 244, s 244(1), s 244(3), s 252(1), s 252(2)
(Page 2)
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.10.1, Element 10
State Administrative Tribunal Act 2004 (WA), s 3(1), s 29(1)
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
Application for review dismissed
Determination of Tribunal in Boyd and Town of Vincent [2007] WASAT 35 affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Boyd and Town of Vincent [2007] WASAT 35
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304
(Page 3)
Summary of Tribunal's decision
1 An unsuccessful applicant in planning review proceedings sought a review by the President of the Tribunal's determination of a matter involving a question of law.
2 Although the Town of Vincent had characterised the proposed development as "construction of garage/workshop additions to existing single house", the Tribunal accepted the Town's town planning consultant's submission that the development should be characterised as an "outbuilding".
3 The President determined that it was open to the Tribunal to characterise the proposed development differently to the Town. The President also determined that the Tribunal did not err in determining that the proposed development constituted an "outbuilding".
4 The application for review by the President was dismissed and the decision of the Tribunal was affirmed.
Introduction
5 These proceedings involve an application brought by Mr Jason Boyd, pursuant to s 244 of the Planning and Development Act 2005 (WA) (PD Act), for a review by the President of the determination of the Tribunal in Boyd and Town of Vincent [2007] WASAT 35 (determination). In its determination, the Tribunal dismissed Mr Boyd's application for review under s 252(1) of the PD Act of the decision of the Town of Vincent (Town) to refuse development approval for the erection of a building at the rear of No 5 St Alban's Avenue, Highgate (site). The building would have an area of approximately 97 square metres, wall heights of 3.0 – 6.8 metres and a ridge height of 6.8 metres and would be used as a garage for up to three cars, a workshop and storage area. The building would include a toilet and shower area and a staircase leading to a "loft" above.
6 The site has an area of approximately 632 square metres and presently contains a single house constructed in 1899 and two other buildings to its rear. One of the existing buildings – a garage – is proposed to be demolished to make way for the proposed building. The proposed building would be connected to the house by an 18 metre long covered walkway via the other existing building which is either a garage or a carport.
(Page 4)
7 In its determination, the Tribunal found that the proposed building constituted an "outbuilding" as defined in the Residential Design Codes of Western Australia (2002) (Codes) and not additions to a "single house" as defined in the Codes.
8 The Tribunal determined that the development application warranted refusal because the proposal did not conform to either the Acceptable Development provision or the corresponding Performance Criteria in cl 3.10.1 of the Codes relating to outbuildings. In particular, the Tribunal determined that the proposed building would detract from the visual amenity of residents or neighbouring properties, because "a 6.8 metre high building relative to the height of the existing residence and occupying almost the whole width of the site would be excessive": [70]. The Tribunal then concluded, at [71], as follows:
"In that sense the Tribunal accepts that, having regard to the particular circumstances of this case, the height and bulk of the development would set an undesirable precedent in this locality and would not be in the interests of orderly and proper planning as it goes well beyond the intent of the Codes with respect to outbuildings."
Application for review by President
9 Section 244(1) of the PD Act provides that the Tribunal constituted by the President may, of its own motion or upon an application made under subsection (3), review a direction, determination or order 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) (SAT Act). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr L Graham who is not a legally qualified member as defined in s 3(1) of the SAT Act. The application for review of the determination was made by Mr Boyd in accordance with s 244(3) of the PD Act within one month of the determination.
10 The ground of review stated by Mr Boyd in his application is as follows:
"That the use class upon which the Town of Vincent determined the application was single house/additions to, and that the SAT decision has been made on an alternative use and that the decision so made by the SAT was constituted without a legally qualified member."
(Page 5)
Did the Tribunal err in law in its determination?
11 At its meeting on 23 May 2006, the Town received a report from its assessing officer which recommended approval of the proposed development. The assessing officer characterised the proposed development as "an addition to existing single house and not as an outbuilding", because it is proposed to be connected to the existing house by an 18 metre long covered walkway. Although the Town did not accept its officer's recommendation for approval, it appears to have accepted the officer's characterisation of the proposed development as the Town's refusal refers to "construction of garage/workshop additions to existing single house".
12 However, Mr SJ Bain, a consultant town planner who both represented and gave evidence on behalf of the Town in the proceedings, contended that the proposed development was properly characterised as an "outbuilding" as defined in the Codes and not as additions to a "single house" as defined. Clause 2.2 of the Codes states that, unless the context requires otherwise, these terms have the following meanings:
"Outbuilding
An enclosed non-habitable structure that is required to meet the standards of the Building Code of Australia and is detached from any dwelling."
"Single House
A dwelling standing wholly on its own green title or surveystrata lot, together with any easement over adjoining land for support of a wall or for access for services and excludes dwellings on titles with areas held in common property."
13 At [58] of the determination, the Senior Sessional Member observed as follows:
"This whole issue appears to revolve around the point that by providing a so-called 'covered way' linking the proposed development to an existing brick and iron garage and then on to the existing residence that this will in effect reclassify the proposed development from an "outbuilding" to an "addition" to a single house."
14 At [60], the Senior Sessional Member determined as follows:
(Page 6)
- "The simple addition of a 'covered way' linking the proposed development via a garage or carport to the existing residence some 17 metres away does not change the fact that the proposed development is still an 'outbuilding', and should be assessed on that basis. In that sense the Tribunal would agree with Mr Bain for the respondent."
15 In The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, Senior Member Mr DR Parry and I determined, at [24], that under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) and s 29(1) of the SAT Act:
"The Tribunal has jurisdiction to categorise the use proposed in a planning application in circumstances where the responsible authority has categorised the proposed use."
16 Section 252(1) of the PD Act is in essentially the same terms as was s 8A(1) of the TPD Act. Although s 252(2) of the PD Act now expressly permits an applicant to apply to the Tribunal for review of a responsible authority's decision under a local planning scheme as to the classification of a use under the scheme or the permissibility of a use that is not listed under the scheme, s 252(1) of the PD Act and s 29(1) of the SAT Act authorise the Tribunal to undertake a characterisation of a proposed development which is the subject of review proceedings for itself. As we observed in The Owners of Strata Plan 18449 and City of Joondalupat [23], "it may be necessary in undertaking a review of the responsible authority's decision to refuse or to conditionally grant planning approval for the Tribunal to categorise the proposed development". In this case, the issue of characterisation having been raised by Mr Bain, it was necessary for the Senior Sessional Member to determine the characterisation of the development for himself.
17 Furthermore, the Tribunal did not err in the characterisation of the proposed development as an "outbuilding" and not as an addition to a "single house". The proposed building is an enclosed non-habitable structure that is required to meet the standards of the Building Code of Australia and is detached from the dwelling on the site. The adjective "detached" is relevantly defined in The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 392 as "standing apart; separate; unattached (usually applied to houses): they live in a detached house". As the Senior Sessional Member correctly determined at [60], although the proposed building would be linked or connected to the dwelling on the site by the covered walkway, it would stand apart, be
(Page 7)
- separate from and unattached to the existing single house. Moreover, the Senior Sessional Member was correct in his observation, at [60], that it is clear from Element 10 of the Codes "that outbuildings are intended to include such activities as garages, workshops and toilets and that is precisely what the proposed development contemplates in the planning application".
18 Further, the proposed development could not be characterised as additions to a "single house", as it does not involve additions to a "dwelling" as defined in the Codes. A dwelling is "a building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis … ". The applicant's consultant town planner gave evidence, which was referred to by the Senior Sessional Member at [40(b)], that the proposed building's "primary function is garage/workshop and is not habitable space".
Other alleged errors
19 In his letter accompanying the application, Mr Boyd also alleged that the determination involved the following errors:
• an incorrect finding that the existing building to the rear of the house which is proposed to be retained is a garage rather than a carport;
• an incorrect finding that the general locality is characterised by single storey houses on small lots; and
• an incorrect determination that the building to the rear of the existing house which is proposed to be retained is an "outbuilding" within the meaning of the Codes.
20 The first two alleged errors involve matters of fact, not of law. Furthermore, it is apparent from [60] that the Senior Sessional Member did not come to a concluded view as to whether the building to be retained is a garage or a carport. Nor did he have to. Nothing relevantly turned on its characterisation.
21 In relation to the third alleged error, Mr Boyd is probably correct in his contention that a carport does not constitute an "outbuilding" under the Codes, as it is not enclosed. A carport is defined as "a roofed structure designed to accommodate one or more motor vehicles unenclosed except to the extent that it abuts a dwelling or a property boundary on one side, and being without a door unless that door is visually permeable": Codes
(Page 8)
- cl 2.2. However, as noted earlier, the Senior Sessional Member did not come to a concluded view in relation to whether the building to be retained is a garage or a carport. Although he described this building, in passing, as an "outbuilding", nothing relevantly turns on this reference.
Conclusion
22 The Senior Sessional Member did not err in characterising the proposed development as an "outbuilding" and not as an addition to a "single house". It was open to and necessary for the Tribunal to determine the proper characterisation of the development. The Senior Sessional Member did not err in undertaking this characterisation.
23 It follows that the application for review by the President should be dismissed.
Orders
24 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The determination of the Tribunal in Boyd and Town of Vincent [2007] WASAT 35 is affirmed.
I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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