BURKE and CITY OF NEDLANDS - [2010] WASAT 171

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BURKE and CITY OF NEDLANDS [2010] WASAT 171

MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD: 9 NOVEMBER 2010

DELIVERED : 25 NOVEMBER 2010

FILE NO/S: DR 252 of 2010

BETWEEN: DAVID BURKE
JUDY BURKE
Applicants
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Town planning - Development application - Dwelling addition in residential zone - Encroachment into rear setback area prescribed under Controlled Development Area - Whether nonconforming use provisions apply in circumstance of existing setback encroachment - Whether Residential Design Codes of Western Australia (2008) apply to allow variation of rear setback - Whether Controlled Development Area setback provisions allow variation of rear setback - Whether setback provisions have been consistently applied - Anomalies and contradictions in town planning scheme

Legislation:

City of Nedlands Town Planning Scheme No 2, Pt IV, Pt V, cl 5.2.3, cl 5.3, cl 5.10, cl 5.10.2(a), cl 5.10.3, cl 5.10.3(a), cl 5.10.3(b), Appendix 1
Planning and Development Act 2005 (WA), s 172, Sch 7 cl 6, Sch 7 cl 7, Sch 7 cl 8
Residential Design Codes of Western Australia (2008), design element 6.3

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicants: Mr P Goff (Representative)
Respondent: Ms A Butterworth (Representative)

Solicitors:

Applicants: MGA Town Planners (Town Planners)
Respondent: Allerding & Associates

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

Barrymores Pty Ltd and City of Fremantle [2008] WASAT 120

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This is a review of the City of Nedlands' decision to refuse an application for additions and alterations to a two storey dwelling in Dalkeith.
The proposed development is located in a Controlled Development Area under the City of Nedlands Town Planning Scheme No 2 and there is a requirement that buildings in the Controlled Development Area be set back 7.5 metres from the rear boundary. Each rear setback area within the Controlled Development Area is identified in plan form in the Scheme documents.
The existing two storey dwelling already encroaches within the 7.5 metre setback but the proposed development would extend substantially further into the 7.5 metre rear setback area otherwise required to be observed in the Controlled Development Area.
The respondent submitted that the 7.5 metre setback requirement of the controlled development area in Pt V of the City of Nedlands Town Planning Scheme No 2 was mandatory although there would be some discretion allowable to permit development within the existing building 'footprint' under the nonconforming use provisions at Pt IV of the Scheme.
The applicants argued that there was scope to exercise discretion under the City of Nedlands Town Planning Scheme No 2 to allow the development, subject to compliance with visual and amenity criteria associated with the Controlled Development Area, and with the boundary setback performance criteria of the Residential Design Codes of Western Australia (2008). The Residential Design Codes of Western Australia (2008) have been adopted under the City of Nedlands Town Planning Scheme No 2. The Controlled Development Area provisions have not been listed under the Scheme as variations or exclusions from the operation of the Residential Design Codes of Western Australia (2008).
The applicants also agreed that, if necessary, a discretion was available to approve the proposal under the nonconforming use provisions of the City of Nedlands Town Planning Scheme No 2.
The Tribunal referred to the meaning of 'nonconforming use' under the Planning and Development Act 2005 (WA) and concluded that it would be incorrect to assume that the existing dwelling enjoyed a nonconforming use right because the placement of the dwelling on the land contravened a development standard. The Tribunal therefore discounted the exercise of discretion to vary the rear setback under Pt IV of the City of Nedlands Town Planning Scheme No 2.
The Tribunal did not accept the applicants' proposition that the provisions of the Controlled Development Area should not be considered a variation or exclusion from the performance criteria governing boundary setbacks under the Residential Design Codes of Western Australia (2008), simply because they were not listed as a variation or exclusion under cl 5.3 of City of Nedlands Town Planning Scheme No 2. The Tribunal pointed to cl 5.2.3 of the City of Nedlands Town Planning Scheme No 2 which specifically identifies that the Residential Design Codes of Western Australia (2008) only apply 'unless otherwise provided for in the Scheme'.
As the Controlled Development Area, including its provisions and development standards, is expressly provided for in the Scheme at cl 5.10, it follows inevitably that a variation from the Residential Design Codes of Western Australia (2008) applies.
As to the applicants' argument that the Controlled Development Area's rear setback requirement permitted the exercise of discretion to allow a reduced setback in line with the proposed dwelling additions, the Tribunal pointed to the absolute and unequivocal wording of the provision, coupled with the documented illustration of the rear setback requirement in the City of Nedlands Town Planning Scheme No 2, to conclude that there was no discretion afforded, at all, to vary the rear setback.
Given the conclusion that there was no discretion under the City of Nedlands Town Planning Scheme No 2 to vary the prescribed rear setback, the Tribunal did not enter into consideration of arguments pertaining to the planning merits of the application.
The Tribunal expressed certain concerns about the local town planning scheme. Several anomalies and contradictions therein suggest that these should be addressed with urgency in the course of a town planning scheme review.
The application for review of the respondent's decision was dismissed.

Introduction

This is an application for review of the decision of the City of Nedlands (respondent) to refuse an application for additions and alterations to a two storey dwelling at No 2A (Lot 18) Jutland Parade, Dalkeith (Lot 18).
The application was submitted to the respondent by Mr David Burke and Mrs Judy Burke (applicants) on 29 April 2010.
Following advertising of the proposal as required by the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme), the respondent considered and refused the application on 27 July 2010. A notice of planning refusal was issued to the applicants on 4 August 2010.
An application for review of the respondent's decision was lodged with the Tribunal on 20 August 2010.

The proposal and its context

Lot 18 is a 908 square metre lot occupied by a two storey single dwelling, located on the southwest corner of Jutland Parade and Iris Avenue, Dalkeith. The dwelling was built in the 1970s.
The locality is generally residential in nature, characterised by substantial single dwellings on large lots.
Across Iris Avenue, to the east of Lot 18, is a reserve for the former Sunset Men's Home. To the north-east is a triangular recreation reserve bounded in part by Iris Avenue and the curving alignment of Jutland Parade.
Lot 18 abuts only one other residential lot, that being Lot 19, which wraps around the western and southern boundaries of Lot 18. The dwelling on Lot 19 is located a little down slope on the more substantial southern portion of the property.
Further down slope, on Lot 20 Iris Avenue, is another dwelling abutting and overlooking the foreshore of the Swan River.
The existing two storey dwelling on Lot 18 is set back 9 metres from Jutland Parade, 4.8 metres from Iris Avenue, 5.85 metres from the southern boundary and 9.315 metres from the western boundary.
The application under review proposes to modify and extend the existing dwelling by:
•extending the kitchen to the east and into the existing dining area;
•adding a family room to the south, adjacent to the extended kitchen, to within 4.28 metres of the southern boundary;
•constructing an alfresco area (open on three sides) to within 1.85 metres of the southern boundary; and
•extending the upper level balcony at the southeastern corner of the dwelling to within 2.95 metres of the Iris Avenue boundary and to within 7.27 metres of the southern boundary.

Statutory and policy instruments

Lot 18 is located within an area zoned Residential R12.5 under TPS 2.
Within the General Provisions of TPS 2, at cl 5.10 'Controlled Development Area', it is provided that any development bounded by Jutland Parade, Iris Avenue and the river foreshore requires Council's special approval. Lot 18 falls within this Controlled Development Area (CDA).
In determining an application within a CDA, cl 5.10.2(a) provides that:
the Council shall consider the effect of the development on the amenity of the surrounding area, the visual effect of the development as perceived from the Swan River and the effect on the amenity of the parks and recreation reserves in that area in accordance with Council policy from time to time determined for each Controlled Development Area.
Clause 5.10.3 provides that in the CDA, amongst other things, 'the rear boundaries of certain lots shall be as delineated in Appendix 1 and the rear setback applicable to boundaries of lots so delineated shall be 7.5 m'. The southern boundary of Lot 18 is depicted in Appendix 1 as the rear boundary requiring a setback of 7.5 metres.

The respondent's decision

The respondent's decision to refuse the application for additions and alterations to the existing dwelling at Lot 18 was expressed in the following terms:
The development is contrary to Clause 5.10 - Controlled Development Area and Appendix 1 of the City's Town Planning Scheme No 2.

The respondent's argument

The respondent argues that the proposal does not comply with mandatory setback requirements of TPS 2 and therefore should not be approved.
While there may be a discretion under the nonconforming use right provisions of TPS 2 to approve development within the bounds of the existing building extending into the setback area, this discretion should not be applied to the proposal in question which encroaches substantially more into the setback area.
Witness for the respondent, Mr N Bakker, a qualified town planner employed by the respondent, expressed his opinion that the proposed 'alfresco' area should be considered as part of the building and should therefore comply with building setback requirements. Mr Bakker drew his conclusion from the definition of a 'building' in Residential Design Codes of Western Australia (2008) (Codes). The alfresco area, in this case, would be reasonably described as a patio which is a term included in the definition of a building.
Mr Bakker was of the view that there was no discretion to vary the 7.5 metre rear setback on Lot 18 based on the express provisions of the CDA. This contrasted with an otherwise clearly stated, qualified discretion within the CDA provisions at cl 5.10.3(a) to vary ground levels. No such statement of discretion qualifies the rear setback requirement at cl 5.10.3(b).
Referring to the applicants' argument that a number of examples demonstrate that buildings in the CDA have been approved in the rear setback area, Mr Bakker responded that only two of nine examples raised indicated buildings intruding into the setback area. One involved resubdivision of land not yet concluded and one was apparently a case of inadvertence. None were approved formally exercising a discretion to vary the 7.5 metre setback.
Referring to another circumstance of a lesser setback in the CDA involving Steve's Hotel, Mr Bakker offered the opinion that as a Special Use zone had subsequently been created to specially control development at the hotel site the more detailed provisions applicable should prevail over the more general CDA provisions. It was acknowledged however that the Special Use zone setbacks were at odds with the CDA provisions.
Mr Bakker summarised that of over 400 properties within the CDA, it would appear that only four have been identified that intrude into the 7.5 metre setback. None were approved using a discretion to vary the setback requirement.
According to Mr Bakker, the respondent has been demonstrably consistent in maintaining the 7.5 metre setback in the CDA.
Mr Bakker agreed with the applicants' witness that there is discretion to vary the setback in this case under the nonconforming use provisions of TPS 2. However, Mr Bakker argued that such an exercise of discretion would not be consistent with orderly and proper planning as the intent of the provisions in cl 5.10 of TPS 2 would not be satisfied by encroaching further into the 7.5 metre setback area.
Responding to examination, Mr Bakker acknowledged that the proposed development would be unlikely to impact on the amenity or visual qualities of the immediate locality. His concern was that such a substantial incursion into the otherwise mandatory setback area would set an undesirable precedent.

The applicants' argument

The applicants argued that the proposed development should be allowed because it is a practical and desirable extension of the existing dwelling at Lot 18, it does not offend the intent of TPS 2, and there are appropriate mechanisms within TPS 2 and the Codes to approve the proposal.
Mr Burke provided a statement to the Tribunal outlining the history of the Burke family's long association with their home at Lot 18. Mr Burke explained the rationale behind the proposed extensions and how it would remain modest in scale and in character with the traditional development pattern of the area.
Mr P Goff, principal of MGA Town Planners, a qualified and experienced town planner, provided expert evidence on behalf of the applicants.
Mr Goff identified the elements of the residential extension and explained the reasoning and practicalities of the southern encroachment into the rear setback area. In this regard, it has been agreed that the southern edge of the proposed balcony extension should be located 0.23 metres to the north to avoid intrusion into the setback area and to comply with privacy provisions of the Codes.
Mr Goff made the observation on the question of the 'alfresco' area that because the respondent accepted that there was a discretion to vary the building setback, then whether the area was deemed to be part of the building or not was of limited significance. It was nevertheless identified in the Codes' definitions that the alfresco area would qualify as 'open space'. However, regardless of which definition is appropriate, the proposed setback of the alfresco area would still comply with the building setback provisions of the Codes.
Addressing the issue of whether there is discretion to vary the 7.5 metre setback in the CDA, Mr Goff drew attention to the circumstance that when TPS 2 was gazetted in 1985, the effect of cl 5.10.3(b) was to substitute a setback of 7.5 metres instead of the 9 metres that was then prescribed for the R12.5 density code by the then 1985 version of the Codes.
As TPS 2 adopts the Codes into the Scheme, the ability to vary rear setbacks in accordance with design element 6.3 of the Codes is available to the respondent. Mr Goff pointed out that there was no specific exclusion or variation to limit this discretion in cl 5.3 of TPS 2.
Mr Goff referred to a number of examples in the CDA where discretion has been used to enable development in the 7.5 metre setback area. Notwithstanding Mr Bakker's investigation and explanation, Mr Goff concluded that four of the nine examples clearly show variations to the 7.5 metre setback and two others show the use of discretion to vary the intent of the Scheme provisions.
The nine examples should in no way be seen as exhaustive as they were only identified through a superficial aerial photographic survey. Mr Goff suggested that Mr Bakker's reference to a ratio of four transgressions in an area of 400 properties was less relevant than measuring the transgressions against the number of planning approvals, a ratio likely to be much more significant.
Mr Goff drew attention to the situation of Steve's Hotel in another part of the CDA. The Special Use zone applicable to the hotel site permits development closer to the rear boundary than the 7.5 metres prescribed by the CDA. The two provisions are clearly in conflict unless a discretionary facility is available under cl 5.10.3(b) of TPS 2.
On the question of discretion to approve the development under Pt IV of TPS 2 'NonConforming Use', Mr Goff identified that the existing dwelling constructed in the 1970s pre-dated TPS 2. As the dwelling was built to 5.85 metres from the rear boundary, it does not conform with the requirements of the CDA if the 7.5 metre setback is considered to be immutable. In this circumstance, the dwelling should enjoy a nonconforming use right.
Mr Goff was of the opinion that use of discretion to approve the development under Pt IV of TPS 2 was appropriate because the development did not offend the planning principles expressed at cl 5.10.2(a) and the proposal otherwise satisfied the performance criteria for variation under the Codes.
Based on the event that there is a discretion to approve the proposed development, Mr Goff was firmly of the view that because the proposal complied with the criteria for approval set out in cl 5.10.2(a) of TPS 2, then it was essentially in accordance with orderly and proper planning for the area.
Noting the applicants' acknowledgment that the proposal would be unlikely to have an effect on local amenity but would generate an undesirable precedent for the area, Mr Goff suggested that was an unreasonable ground for refusal. Each application should be considered on its merits rather than rely on a speculative generality of precedent. In any case, there are a number of precedents, such as those already identified, in the area.

Analysis

Two fundamental questions arise in this review:
1)Whether there is a discretion to allow the development.
2)If there is a discretion, does the proposal comply with relevant planning requirements of TPS 2 and the Codes in order for it to be allowed?
The applicants have argued that there is discretion to allow the development in the context of cl 5.10 'Controlled Development Area' of TPS 2, or, failing that, at Pt IV - the nonconforming use provisions of TPS 2. In both cases, the setback requirements should be measured against the performance standards of the Codes.
The respondent is of the opinion that there is no discretion under cl 5.10, but because the existing dwelling is not in compliance with the mandatory setback provisions of TPS 2, then that part of the premises within the setback area enjoys a 'nonconforming' use right. Accordingly, the provisions of Pt IV of TPS 2 apply. The respondent believes, however, that discretion should be limited to only allowing building extension in the rear setback area within the footprint of the existing dwelling.
The Tribunal advised the parties at the hearing of the definition of 'nonconforming use' as described at s 172 of the Planning and Development Act 2005 (WA) (PD Act) and that, on the face of it, there appeared doubt as to the relevance or application of Pt IV of TPS 2 in this matter.
The Tribunal understands that 'nonconforming' use refers to a formerly lawful use of land which is not in conformity with a provision of a Scheme because it is a use now prohibited by zoning or reservation of the land (Sch 7, cl 6 and cl 7 of the PD Act). The PD Act does not contemplate or refer to the application of nonconforming use rights in respect of noncompliance with development standards that pertain to the land (set out separately at Sch 7, cl 8).

In his deliberations in Barrymores Pty Ltd and City of Fremantle [2008]WASAT 120, Mr DR Parry, Senior Member, said, at [35]:
... Furthermore, the definition of 'nonconforming use' does not include nonconformity with a provision of a local planning scheme that deals with density of development. Standards of development … are matters specified in Sch 7, cl 8 of the PD Act, not in cl 6 or cl 7. ...
Having regard to Mr Parry's observation and the circumstance that this proposal also relates to noncompliance with a standard of development, a matter specified in Sch 7, cl 8 of the PD Act, the Tribunal affirms its view that exercise of a discretion under Pt IV of TPS 2 is not appropriate. The proposal is not a nonconforming use in terms of the PD Act or TPS 2.
Turning to the question of whether there is otherwise a discretion to approve the proposed development under Pt V of TPS 2, the applicants have presented an argument that the discretion follows because cl 5.3 of TPS 2, headed 'Residential Planning Codes: Variations and Exclusions', lists no reference to CDAs being a variation from the provisions of the Codes. Accordingly, the respondent argues, the setback provisions of the CDA at cl 5.10.3 are subject to variation having regard to the amenity and visual criteria identified at cl 5.10.2(a), and additionally in accordance with the performance standards for boundary setbacks at design element 6.3 of the Codes.
The applicants have identified various examples of building incursion into the setback area demonstrating that from time to time there appears to have been an exercise of discretion to vary setbacks in the CDA in the past.
The respondent, however, rejects the proposition that there is a discretion to vary the rear setback requirement under the Scheme. The wording of cl 5.10.3(b) of TPS 2 is unqualified and unequivocal. It provides that 'the rear setback applicable to boundaries of lots so delineated shall be 7.5 metres'. Appendix 1 of TPS 2 specifically identifies Lot 18, with the dwelling thereon, and graphically illustrates the 7.5 metre setback required.
The respondent has sought to explain the circumstances of cases where there has been an incursion into the CDA setback areas, and concluded that there are only a small number of exceptions and that none involved a deliberate exercise of discretion.
In analysing the opposing arguments, the Tribunal has become aware of inconsistencies and omissions and, to some extent, a lack of coherence in TPS 2.
The Scheme omits reference at cl 5.3 to any aspect of the CDA as a variation from the Codes. However, this is contradicted at cl 5.2.3:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes.
There is a clear reference to an exemption from the Codes where development of land for residential purposes is 'otherwise provided for in the Scheme'.
The provisions for the CDA are, of course, certainly provided for in TPS 2 at cl 5.10. The provisions address planning objectives and development standards of substance, and constitute a significant variation from the Codes.
There appears to be no reasonable option other than to accept that cl 5.2.3 of TPS 2 has to be taken to mean that cl 5.10 'Controlled Development Area' is exempt from application of the Codes insofar as there are express inconsistencies with the Codes. The fact that the exemption or variation is not listed in cl 5.3 should not, in the Tribunal's opinion, override the plain meaning of cl 5.2.3 of the Scheme.
Turning to cl 5.10 of TPS 2, the applicants have suggested that it is open to vary the rear setback, provided the visual impact and amenity criteria set out at cl 5.10.2(a) are not offended.
The Tribunal is unable to accept this argument. Firstly, it should be noted that the visual and amenity criteria for the CDA could be offended by a range of development characteristics including building height, or bulk, earthworks and so on. It could be expected that the responsible authority would exercise discretion to approve or reject development on the basis of characteristics such as these. This is mentioned to emphasise that the visual and amenity criteria has no exclusive, dependent relationship with any suggested discretion to vary the rear setback. Secondly, the wording of cl 5.10.3(b) of TPS 2 is couched in absolute and unequivocal terms that the rear setback 'shall be 7.5 metres'. There is no reference to any qualification or authority to vary the rear setback for any reason. There is no express linkage to the visual and amenity criteria at cl 5.10.2(a) of the Scheme.
By comparison and contrast, cl 5.10.3(a) of TPS 2 does use qualified language to quite clearly articulate that ground levels may be varied by discretion having regard to amenity criteria.
The Tribunal is also mindful that there is great precision in identifying the relevant rear setbacks in the Scheme documents. Each lot has been shown on a plan which is part of the Scheme and the required 7.5 metre setback has been graphically displayed thereon. Indeed, it makes it plain that to vary a rear setback would actually require an amendment to the Scheme.
The applicants' reference to certain cases where variations to the setback have occurred is acknowledged, but the Tribunal remains unconvinced that these cases represent more than a manifestation of misguided interpretation of the Scheme and/or human error. There has not been a consistent practice by the respondent of applying discretion to vary rear setbacks in the CDA. Indeed, the Tribunal understands that the reverse is the case.
Drawing the analysis together at this point, it is clear that, regardless of any consideration of the merits of the proposed development, it is evident there is no basis under TPS 2 for the Tribunal to exercise any discretion to allow a development that would encroach into the rear setback area as proposed.
In these circumstances, there is then no useful purpose for the Tribunal to make further comment on the arguments put by the parties as to the merits of the proposed development.
It is appropriate, however, to draw the respondent's attention to some shortcomings of TPS 2 arising from this review.
The Tribunal had concern that there was an absence of a clear, concise explanation for the CDA in the Scheme, and a rationale for the extensive and precise application of the 7.5 metre rear setbacks. It would be helpful to administrators and the public to better understand the reasoning behind the provisions of the CDA if the objectives are more clearly set out. It should then be logical, observable and justifiable how the various development controls contribute to achieving the desired outcomes.
There have been several anomalies identified in the Scheme.
Firstly, the absence of any recognition at cl 5.3 of the variation from the Codes manifested by cl 5.10 but otherwise authorised at cl 5.2.3.
Secondly, the obvious contradiction of the setbacks for Steve's Hotel as prescribed under Amendment 152, compared with the setbacks extant under the CDA.
Such anomalies in the Scheme generate confusion and misunderstanding and should be rectified.
It is notable that TPS 2 dates back to 1985. It would be desirable to address and resolve these issues in the context of any Scheme review that ought to be undertaken in the near future.

Conclusion

Based on the preceding analysis, the Tribunal concludes that there is no discretion available to allow variation of the relevant building setback requirements under TPS 2 and that, therefore, the application for review of the respondent's decision to refuse the proposed additions and alterations to the existing dwelling at No 2A (Lot 18) Jutland Parade, Dalkeith should be dismissed.

Order

1.The application for review is dismissed.
2.The decision of the respondent made on 4 August 2010 to refuse development approval for additions and alterations to the existing two storey dwelling at No 2A (Lot 18) Jutland Parade, Dalkeith is affirmed.

I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER