CARBONE and CITY OF WANNEROO
[2011] WASAT 27
•11 FEBRUARY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CARBONE and CITY OF WANNEROO [2011] WASAT 27
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 12 OCTOBER 2010
DELIVERED : 11 FEBRUARY 2011
FILE NO/S: CC 633 of 2009
BETWEEN: CHARLIE CARBONE
Applicant
AND
CITY OF WANNEROO
Respondent
FILE NO/S :DR 419 of 2009
BETWEEN :CHARLIE CARBONE
Applicant
AND
CITY OF WANNEROO
Respondent
FILE NO/S :DR 324 of 2010
BETWEEN :CHARLIE CARBONE
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Retaining wall - Unauthorised fill - Building approval - Residential Design Codes of Western Australia (2010) approval - Section 214 direction
Legislation:
City of Wanneroo District Planning Scheme No 2
Local Government Miscellaneous Provisions Act 1960 (WA), s 374(2a), s 374(2b), s 374AA, s 374AAD(1), s 374AAD(1)(c)
Planning and Development Act 2005 (WA), s 214, s 214(3), s 214(6), s 252, s 252(1), s 255(1)
Residential Design Codes of Western Australia (2010), Pt 2.1.3, cl 2.5.1, cl 2.5.2, cl 3.0, Pt 6.3.3, Pt 6.3.3 P3, Pt 6.3.3 A3
Result:
CC 633 of 2009
Matter struck out and application dismissed
DR 419 of 2009
Decision of Council set aside and direction revoked
DR 324 of 2009
Application dismissed and Council's decision affirmed
Category: B
Representation:
CC 633 of 2009
Counsel:
Applicant: Selfrepresented
Respondent: Mr D Nicholson
Solicitors:
Applicant: Self-represented
Respondent: McLeods Barristers & Solicitors
DR 419 of 2009
Counsel:
Applicant: Selfrepresented
Respondent: Mr D Nicholson
Solicitors:
Applicant: Self-represented
Respondent: McLeods Barristers & Solicitors
DR 324 of 2010
Counsel:
Applicant: Selfrepresented
Respondent: Mr D Nicholson
Solicitors:
Applicant: Self-represented
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Fermanis Investments Pty Ltd v City of Perth [1978] WAR 33, (1977) 43 LGRA 1
Singleton and Town of Port Hedland [2007] WASAT 188
Smart and Town of Port Hedland [2008] WASAT 74
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Charlie Carbone brought three applications for review before the Tribunal in respect of works which included a retaining wall he wished to erect and fill that had been placed on his property at No 8 Walton Place, Quinns Rocks.
The first application, CC 633 of 2009, was in respect of a purported refusal by the City of Wanneroo to issue a building licence for the retaining wall and additions to the first floor of Mr Carbone's dwelling.
Based on the facts and the evidence received, the Tribunal determined that there was no actual decision by the City of Wanneroo that could be reviewed and the application was struck out and the proceedings dismissed.
The second application, DR 419 of 2009, related to a direction under s 214 of the Planning and Development Act 2005 (WA) issued by the City of Wanneroo to Mr Carbone to remove fill which had been placed on his property without approval.
Although the Tribunal was satisfied that the City of Wanneroo was entitled to issue the direction, it found that the direction issued did not comply with the requirements of the Planning and Development Act 2005 (WA) and in the circumstances, the decision to issue the direction was set aside and the direction revoked.
The third and final application, DR 324 of 2010, related to a decision by the City of Wanneroo to refuse an application for approval under the Residential Design Codes of Western Australia (2008) which Mr Carbone had made for a retaining wall.
The Tribunal found that the retaining wall proposed by Mr Carbone would be oppressive in terms of bulk and scale and would not, as designed, minimise the impact on adjoining properties as required by the Residential Design Codes of Western Australia (2010).
That application for review was therefore dismissed and Council's decision to refuse the application for approval was affirmed.
Introduction
These proceedings involve three separate applications brought by Mr Charlie Carbone (applicant or Mr Carbone) in respect of a retaining wall he wished to build, and unauthorised fill that had been placed on his property.
Mr Carbone's property is situated at No 8 Walton Place, Quinns Rocks, being Lot 473 on Plan 7798, being the whole of the land described in Certificate of Title, Volume 14 Folio 331A (property or land).
It is a residential property with a land area of 1,611 square metres and is zoned residential R20 under the City of Wanneroo District Planning Scheme No 2 (DPS 2).
Each of the three applications related to largely the same issues, namely, the retaining wall and fill, and all three were heard together on 12 October 2010.
CC 633 of 2009 was the first application received by the Tribunal on 7 May 2009 under s 374AAD(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act) in which the applicant sought a review of the refusal by the City of Wanneroo (respondent, City or Council) to issue a building approval certificate for a retaining wall and additions to the applicant's dwelling on the property.
The second application was DR 419 of 2009, received on 30 October 2009, under s 255(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of a decision by the City to issue a direction under s 214 of the PD Act to remove unauthorised fill from the property.
The third and final application was DR 324 of 2010, received with the consent of the respondent on the day of final hearing on 12 October 2010, under s 252(1) of the PD Act to review a decision of Council to refuse a Residential Design Codes of Western Australia (2008) (2008 Codes) approval application in respect of a retaining wall.
Chronology
To put all three applications into context and for purposes of clarity, the following is the chronology of the three matters from the date of receipt of the first application to the date of final hearing.
7 May 2009First application CC 633 of 2009 under s 374AAD(1)(c) of the LG(MP) Act for the review of a refusal by the respondent to issue a building approval certificate was lodged with the Tribunal.
21 May 2009 First directions hearing in CC 633 of 2009 when the Tribunal ordered:
The matter is adjourned to a directions hearing to be held on 23 July 2009 to enable Mr Carbone to meet with the City to discuss ways to resolve the dispute.
23 July 2009 Directions hearing in CC 633 of 2009 when the Tribunal ordered:
1.The matter is adjourned to a directions hearing to be held on 6 August 2009.
2.If the applicant fails to attend the directions hearing the application may be dismissed.
By letter of 31 July 2009, the respondent requested the directions hearing listed for 6 August 2009 to be relisted on 13 August 2009.
13 August 2009 Directions hearing in CC 633 of 2009 when the Tribunal ordered:
The matter is adjourned to a directions hearing to be held on 10 September 2009 to enable the applicant to be informed of the outcome of the deliberations of the City.
10 September 2009 Directions hearing in CC 633 of 2009 when the Tribunal ordered:
The matter is adjourned for mediation to take place at 2 pm on 6 October 2009 at 8 Walker Place, Quinns Rocks.
6 October 2009 Mediation in CC 633 of 2009 when the Tribunal ordered:
1.The mediation is terminated.
2.The matter is listed for a directions hearing on 15 October 2009.
15 October 2009 Directions hearing in CC 633 of 2009 when the Tribunal ordered:
The matter is adjourned to a directions hearing to be held on 29 October 2009 to enable the respondent time to issue the formal notice in writing in which its decision regarding the building licence application is set down and for it to issue a notice in regard to the land fill [sic].
On 15 October 2009, the respondent issued a refusal in respect of the building licence application which was already the subject of the application for review in CC 633 of 2009.
In late October 2009, the respondent also issued an undated direction under s 214 of the PD Act in respect of unauthorised fill on the property.
29 October 2009 Directions hearing in CC 633 of 2009 when the Tribunal ordered:
1.The matter is adjourned to a directions hearing to be held on 19 November 2009.
2.If Mr Carbone lodges a new application in which he seeks to have the notice regarding the land fill [sic] set aside, the building licence application (CC 633 of 2009) and the land fill [sic] application would be scheduled to be heard together.
30 October 2009 The Tribunal received an application from the applicant under s 255(1) of the PD Act seeking a review of the decision by the respondent to issue a direction under s 214 of the PD Act to remove the unauthorised fill from his property.
2 November 2009 Following receipt of that new application, which became DR 419 of 2009, the Tribunal ordered:
The directions hearing listed for 19 November 2009 at 3 pm is vacated and substituted with a directions hearing to take place on the same date at 9.30 am to enable applications CC 633 of 2009 and DR 419 of 2009 to be heard together.
19 November 2009 A directions hearing was held in both CC 633 of 2009 and DR 419 of 2009 at which orders were made programming both matters through to a final hearing on 22 February 2010.
21 December 2009 The respondent filed a statement of issues, facts and contentions, together with a s 24 bundle of documents in line with the programming orders.
10 February 2010 In further compliance with the programming orders, the respondent filed copies of statements of evidence of persons they wished to call in evidence.
19 February 2010 The Tribunal received a letter from Redding and Associates Barristers and Solicitors headed 'Carbone vs City of Wanneroo CC 663 of 2009 and DR 419 of 2009' which stated:
We have been approached by the Applicant, Mr Carbone. We have been requested to advise and represent Mr Carbone in these matters.
We understand the final hearing is listed for Monday, 22 February 2010 before a single Member of the Tribunal. We will not have sufficient time to become familiar with the issues to be in a position to represent Mr Carbone. We are also committed to appear in an unrelated matter in the Supreme Court for the same day. This has been explained to Mr Carbone. He has still requested we advise and represent him.
We do not represent Mr Carbone as at this time.
However, we are prepared to advise and represent Mr Carbone if the final hearing is vacated and relisted for a time some 3-4 weeks later. If the final hearing is listed within a period of some 3 weeks then we will be unable to assist Mr Carbone due to other commitments on unrelated matters. Mr Carbone can, of course, seek alternative representation. We do consider it is in the best interests of Mr Carbone to secure legal representation.
As such, and for and on behalf of Mr Carbone, we request the final hearing be vacated and relisted for a time convenient to the Member, the Tribunal, the Respondent and Mr Carbone.
We understand and confirm that:
1.Mr Carbone was born in Italy and attended school until the age of 12 years;
2.Mr Carbone immigrated to Australia at the age of 19 years;
3.Mr Carbone has limited ability to read and write in the English language. He can speak only conversational English;
4.Mr Carbone worked as a self-employed car repairer and dealer until he retired at the age of 65 years;
5.Mr Carbone has limited ability to understand written material - but can do so if the contents are explained to him slowly;
6.Mr Carbone may require the services of an interpreter for any hearing - albeit, this may not be necessary if he is represented;
7.We have, on behalf of Mr Carbone, contacted the solicitors for the Respondent and sought their attitude to vacating the final hearing. Those solicitors are McLeods. We telephoned them in the afternoon of Thursday, 17 February 2010. Those solicitors advised they would seek their client's instructions and revert to us;
8.It is possible that, by securing legal representation, Mr Carbone's position can be clarified, facts agreed and the time required for the conduct of the final hearing reduced. We cannot put it any higher than a possibility. We are not apprised of all the relevant facts and circumstances as at this time.
Can you please pass this communication to the relevant Member as soon as reasonably possible? We thank you for attending to this request.
We look forward to receiving a response.
We confirm we have sent a copy of this communication to the solicitors for the Respondent.
22 February 2010 Based on that request, the Tribunal vacated the hearing listed for 22 February 2010 and made the following orders:
1.The hearing on 22 February 2010 is vacated.
2.By 1 April 2010 the applicant must file with the Tribunal and give to the respondent its own statement of issues, facts and contentions, identifying, where drafted by a legal representative or agent, the responsible draftsperson, and setting out:
(a)by reference to each paragraph number in the respondent's statement whether the applicant accepts or rejects the issue, fact or contention identified by the respondent; and
(b)any other issues, facts and contentions it says are relevant to the decision under review.
3.If the applicant proposes to give evidence or call any witness, including any expert, to give evidence at the hearing it must by 1 April 2010 file with the Tribunal a signed statement of the witness' evidence and give a copy of the statement to the other parties.
4.The matter is re-listed for final hearing on 27 April 2010.
13 April 2010 The Tribunal received a letter from the applicant seeking an adjournment of the hearing of 27 April 2010. He stated:
I must attend the hearing on Tuesday 27 April 2010 relating to the above.
I humbly seek an adjournment of[,] say, 2 to 3 months so that I can use the time to find myself another lawyer to represent me at the hearing. My previous lawyer, after 6 weeks, has informed me that he is now unable to defend me and I am actively looking for another lawyer.
22 April 2010 Following receipt of that letter, both matters were brought on for urgent directions by the Tribunal on 22 April 2010 to deal with the applicant's request to adjourn the hearing listed for 27 April 2010.
There was no appearance by the applicant or any representative of the applicant and the Tribunal made the following orders:
1.The hearing listed for 27 April 2010 is vacated.
2.The matter is listed for further directions hearing on 13 May 2010 at 11 am.
3.If there is again no appearance by the applicant on 13 May 2010 the application may be dismissed or struck out under s 48 of the State Administrative Tribunal Act 2004 (WA) without further notice.
13 May 2010 A new notice of representation was filed on behalf of the applicant by Tang Legal who represented the applicant at the directions hearing.
Full programming orders were again made in both CC 633 of 2009 and DR 419 of 2009 to bring both matters to final hearing on 27 July 2010.
Due to the history of the matter, the Tribunal also made the following orders:
9.If prior to the date of final hearing the parties believe further mediation would be of value they may apply to the Tribunal to have a mediation listed. However any such mediation must be completed prior to the date for final hearing.
10.As the final hearing of the matter has been adjourned on a number of previous occasions any further request to adjourn will only be considered in exceptional circumstances and at a special directions hearing before the Tribunal.
6 July 2010On the application by the respondent that their principal witness would be overseas on the planned date of final hearing, the date was relisted, with the consent of the applicant's solicitors, to 12 October 2010.
5 August 2010 Both CC 633 of 2009 and DR 419 of 2009 were brought on for directions to check the timetable set for final hearing was being complied with.
19 August 2010 Following receipt of a notification of ceasing to act on behalf of the applicant by Tang Legal, both matters were brought on for further directions when the following orders were made:
1.The matter remains listed for final hearing on 12 October 2010 at 10:00 am.
2.The applicant is excused from complying with the programming orders made 13 May 2010 and may furnish any evidence he wishes the Tribunal to take into account at the hearing.
3.An interpreter will be provided for the applicant at the hearing on 12 October 2010.
30 September 2010 Both matters were listed for mediation on Tuesday 15 October 2010 at 10 am on site.
12 October 2010 Both matters came on for final hearing at which Mr Carbone represented himself with an interpreter present to assist him.
During the course of the hearing, with the consent of the respondent, a new application under s 252(1) of the PD Act was filed by Mr Carbone and dealt with as part of the final hearing to ensure that all matters were properly before the Tribunal and a final resolution of all matters could be achieved at the one hearing. The new application was DR 324 of 2010.
Evidence
As the Tribunal dealt with three separate applications on largely the same evidence, it was agreed by all parties that with the exception of the relevant application which would be Exhibit 1 in each case, all other exhibits, that is, Exhibit 2 through to Exhibit 11 inclusive, would be taken as being exhibits in each of the three matters, thereby ensuring a consistency of evidence across all matters.
An interpreter was available for Mr Carbone. However, during the course of the hearing the interpreter explained that in their opinion Mr Carbone didn't need an interpreter, as he could understand the interpreter better in English than Italian. Mr Carbone confirmed that was correct and the interpreter left approximately half way through the hearing.
Apart from the oral evidence received at the hearing, all of which was recorded and available as transcript, the following documents were listed as exhibits in each of the three applications:
1)Applications CC 633 of 2009, DR 419 of 2009 and DR 324 of 2010 respectively in the relevant case.
2)Letter to the applicant from Algeri Planning dated 16 December 2009.
3)The respondent's statement of issues, facts and contentions dated 18 December 2009.
4)The respondent's s 24 bundle of documents dated 18 December 2009.
5)The witness statement of Mr Pasqualino Bracone, the Manager of Planning Implementation of the respondent, dated 12 October 2010.
6)Set of eight photographs filed with the Tribunal in September 2009.
7)Set of seven photographs of the existing retaining wall.
8)Set of 12 photographs supplied by the applicant of surrounding properties and various retaining walls.
9)Set of 10 photographs furnished by the applicant in respect of the applicant's current retaining wall on the property.
10)Letters from two neighbours to the City dated 26 May 2009.
11)Council refusal of the application for a 2008 Codes variation dated 26 May 2009.
CC 633 of 2009
Facts
Application CC 633 of 2009 was filed with the Tribunal on 7 May 2009 under s 374AAD(1)(c) of the LG(MP) Act for the review of a refusal to issue a building approval certificate.
The decision sought in the application stated:
To allow Council to approve application for Building License [sic] and to approve the application (BA09/0525) of building a retaining wall to the existing house.
Also to maintain & retain the current sand fill as it is in accordance with BCA Regulations.
The existing sand fill will be efficient to withhold building material required for the retaining wall.
Grounds on which the review was sought were:
The City of Wanneroo was asked to remove all existing sand fill because they say it's contaminated. I formally request that the sand to be retained and I am willing to get any required engineers or geotech soil testing to uncontaminated [sic] or cure the sand without removing it.
Attached to the application were the following documents:
1)A building licence application stamped by the respondent as received on 16 February 2009 for a retaining wall and additions in the form of the relocation of the kitchen at the applicant's property.
2)A letter dated 8 January 2008 addressed to the City from Mr DW Nicholls, a structural engineer, which attached a number of plans.
The letter stated:
Attached find a proposal to develop the block and in process resolve the fill problem.
The top [of] the proposed retaining wall is approximately R.L 16.0.
The worst case scenario is that the NorthWest corner adjacent to Lot 461 as the ground level drops away to R.L 10.82. This results in a short length (approx 30 m) of wall being just over 5 metres high. Lot 462 steps up and continues to the East of [L]ot 462 where the retaining would be less than 1.0 m high.
On the Western boundary the maximum height retained would be apparently 4.4 metres which reduces going South until it meets the garage which has a full height retaining wall at the rear. FL. approximately 13.7 m wall height about 2.4 ie R.L retained height 2.3 m above the floor.
At the front of the garage on the West boundary, the ground levels are approximately matching.
These details are submitted for your consideration and it is understood that some extra detail may be required[;] however, this is intended as a starting point and also to let yourselves know that it's not being ignored.
It is anticipated that some more levels may be required.
3)A letter from the respondent to the applicant dated 23 February 2009 stated 'the City acknowledges receipt of the application dated 16/02/2009'.
Preliminary assessment of this application has been completed[;] the following items are to be addressed:
1.Please provide a quotation, including a detailed pricing list, for the proposed first floor addition.
Paragraph 2 of what appears to be a standard letter was deleted as were paragraphs 5, 6 and 8. The remaining paragraphs, 3, 4, 7 and 9 stated:
...
3.Please provide relevant documentation for energy efficiency including a calculation worksheet for air movement and effective glazing.
4.You are required to submit copies of BCA Energy and Water Efficiency Conformance Check Sheet and Declaration.
...
7.In accordance with the City's policy, the maximum retaining height to common boundaries is 1,000 mm. You are required to submit amended plans meeting this requirement.
...
9.Please provide specific details of the type of termite treatment to be used.
In the respondent's s 24 bundle of documents (Exhibit 4) at tab 13 there was a letter from the respondent to the applicant dated 15 October 2009 (five months after the application was lodged) which referred to the building application lodged on 16 February 2009 and stated:
You are advised that your application was refused for the following reason:
1The City resolved to refuse the retaining walls as submitted as the proposal exceeds the acceptable development provisions of the Residential Design Codes and the City's policy.
Consideration
The first issue to note is that the building licence application which the applicant sought to have reviewed was for a retaining wall and additions to the first floor of the applicant's home.
However, in the application for review filed with the Tribunal, two of the three paragraphs outlining the decision the applicant sought, related to fill on the property which had formed no part of the application to the respondent.
In the circumstances, issues regarding fill could form no part of the application for review, as they were not part of the original application to the respondent, nor was any decision made by the respondent in respect of it.
As to the matters that were included in the application, namely, the first floor addition and the retaining wall, the only decision that appears to have been made by the respondent in respect of those matters was that recorded in the letter to the applicant dated 15 October 2009, some five months after the application for review had been lodged.
It appears that, at the date of the application to this Tribunal, namely, 7 May 2009, no reviewable decision had been made by the respondent and, as outlined in the letter from the respondent dated 23 February 2009 set out above, only a preliminary assessment had been completed and further information requested.
The application for review lodged by the applicant on 7 May 2009 was brought under s 374AAD(1)(c) of the LG(MP) Act which is headed 'Review of decisions about building licences and building approval certificates'.
Section 374AAD(1) states:
A person who is dissatisfied with -
(a)the refusal of a local government to approve plans and specifications submitted under section 374(1);
(b)conditions specified in a building licence issued under section 374(1);
(c)the refusal of a local government to issue a building approval certificate under section 374AA; or
(d)conditions specified in a building approval certificate under section 374AA,
may apply to the State Administrative Tribunal for a review of the refusal or the conditions.
...
The applicant had lodged his building licence application with the respondent in February 2009 in respect of a proposed retaining wall and first floor additions.
No work in respect of either of those matters had been carried out at that time, and the application was correctly therefore prospective, seeking approval for work that was yet to be carried out. Any application for review should therefore be made under s 374AAD(1)(a) of the LG(MP) Act, not s 374AAD(1)(c) as had been done.
If that was the only issue of concern with the application for review, the Tribunal could amend it. However, more critically as explained above, no reviewable decision appears to have been made in respect of the building licence application at the time the application for review was lodged.
In the circumstances, to allow CC 633 of 2009 to be dealt with by the Tribunal, it would need to qualify as being a deemed refusal prior to the date of application for review on 7 May 2009.
If a person wishes to bring an application for a deemed refusal where they have made an application for a building licence (or a building approval certificate) but have not been advised by the local authority of a decision, that person may, under s 374(2a) of the LG(MP) Act:
... serve on the chief executive officer a written notice requiring the local government within 14 days of the service of the notice, to notify him of the approval or otherwise of the specifications and plan.
Section 374(2b) of the LG(MP) Act then states:
If within 14 days after the notice referred to in subsection (2a) has been served on him, the chief executive officer fails to notify the person that the local government has or has not approved of the specifications and plan, the local government shall be deemed to have refused to approve them.
The person may then apply to this Tribunal under s 374AAD(1) of the LG(MP) Act as set out above.
In the present case, no notice of the type referred to in s 374(2a) or s 374(2b) of the LG(MP) Act ever appears to have been served or received and therefore no refusal can be deemed to have taken place in respect of the application for a building licence lodged with the respondent on 16 February 2009.
Conclusion
As the fill was never included in the building licence application, it could not be included in the application for review. In respect of the retaining wall and the additions to the first floor which were part of the application to the respondent, no reviewable decision was made prior to the lodgement of the application with the Tribunal on 7 May 2009. Furthermore, no deemed refusal could have taken place as the relevant notices were not given.
This leaves nothing in CC 633 of 2009 filed on 7 May 2010 properly before this Tribunal for consideration and the matter will therefore be struck out and the application dismissed.
Comment
During the hearing on 12 October 2010, as the circumstances outlined above and the result became clear, the Tribunal endeavoured to explain the position to the applicant and stated:
SPILLANE, MR: Okay. Let me explain where we are, Mr Carbone, so you understand. Nobody wants to catch you by surprise. Nobody wants to make you feel you haven't been heard, okay? There's two applications in front of the [T]ribunal. One is a refusal to issue a building licence, okay?
CARBONE, MR: Right.
SPILLANE, MR: The other is an appeal against a direction to remove the fill. The review of the decision to remove the fill is fine. I can hear that. It's correct. I have no problem. You know, I can hear it and make a decision on it. I don't know what decision I'll make, but I can make a decision on it.
CARBONE, MR: But can I say something? Is any possibility, is any law, right, that I have to remove the sand fill if I leave the clean fill in there? Like I say, I get a bulldozer, a nice couple tree stump in there that have to come out, and we knew from before when - going to be digging down for the - - -
SPILLANE, MR: We'll deal with that when we deal with that application, all right?
CARBONE, MR: All right.
SPILLANE, MR: The next issue, though, the next issue is the building approval, right, for the kitchen and for the retaining wall.
CARBONE, MR: Right.
SPILLANE, MR: It would appear on reading it that it's incorrect. It's not before the [T]ribunal correctly, all right, and I could just throw it out, okay? I don't want to do that, because everybody has spent too much time trying to finalise this matter. You made an application - you made this application to the [C]ity - just bear with me - yes. That's an application you made to the [C]ity at some time [sic] about the retaining wall, right?
CARBONE, MR: Yes.
SPILLANE, MR: And that's their refusal. That's their refusal. Now, you never appealed that.
CARBONE, MR: Well, I didn't know that I had to.
SPILLANE, MR: I know, I know. I know, but I'm just telling you as a fact.
CARBONE, MR: Right.
SPILLANE, MR: But I will allow you to appeal it today, do you understand, and we will have to fill out some forms, file them downstairs, bring them back up.
CARBONE, MR: Right.
SPILLANE, MR: I'll extend - it's a mechanism in order to get that in front of the [T]ribunal. You need to listen - - -
... (T:32-33, 12.10.10)
The application about the retaining wall and the refusal referred to in that exchange related to a Codes Approval Application Mr Carbone had made to the City, which the City had refused but in respect of which Mr Carbone had never lodged an application for review. By lodging a new application for review of that refusal, the retaining wall issue could be considered by the Tribunal as the applicant wanted.
To allow such a new application for review to be filed, the hearing was adjourned for a short time and the applicant was assisted to lodge an application against the City's refusal.
The facts were that the applicant had lodged an application for Codes Approval with the City on 19 May 2009, and the City had refused that application and notified the applicant by letter of 15 October 2009. That new application became DR 324 of 2010.
The comment 'the review of the decision to remove the fill is fine' referred to in the exchange outlined above, was a reference to DR 419 of 2009.
A further exchange with the applicant confirmed the position in respect of the kitchen additions which stated:
…
SPILLANE, MR: Okay. What that does then is it makes what is in front of the [T]ribunal the retaining wall and the fill.
CARBONE, MR: Right.
SPILLANE, MR: The kitchen is not here.
CARBONE, MR: Right.
SPILLANE, MR: Do you understand that?
CARBONE, MR: Right.
SPILLANE, MR: But at least I can make decisions on the retaining wall and the fill. All right?
CARBONE, MR: Right.
SPILLANE, MR: You'll have to go back and get a decision from [C]ouncil on the kitchen. It's a separate issue[.]
… (T:34, 12.10.10)
DR 419 of 2009
Facts
This matter relates to the issue of unauthorised fill placed on the applicant's land.
Mr Pasqualino Bracone, the manager of planning implementation at the City of Wanneroo, set out the history regarding the fill at paragraphs 7 12 of his statement of evidence stating:
7.In 2007, the Applicant placed up to 4 metres of fill on the north[]western part of the Land ('Fill').
8.Pursuant to clause 6.1.1 of the Scheme, no person shall commence or carry out development unless the Council's approval has first been obtained.
9.The Fill constitutes development.
10.Between 11 September 2007 and 2 May 2008 inclusive, the City wrote to the Applicant on 5 occasions advising him that he needed to either apply for retrospective approval for the Fill or remove the Fill from the Land. Copies of those letters are contained at documents 1 - 5 of the Respondent's Section 24 Bundle of Documents ('Bundle').
11.Despite the correspondence from the City, the Applicant has not applied for retrospective approval for the Fill or removed the Fill from the Land.
12.In late October 2009, the City gave the Applicant a direction pursuant to section 214(3) of the Planning and Development Act 2005 requiring the Applicant to remove the Fill from the Land ('Direction'). A copy of the Direction is located at document 14 of the Bundle.
A copy of the direction referred to by Mr Bracone was included in the respondent's bundle of documents (Exhibit 4). It was also attached to the application filed by the applicant on 30 October 2009. Both the copy of the direction in the s 24 bundle of documents and the copy attached to the application were undated and only the copy attached to the application had a signature.
For completeness, the Tribunal now sets out the full text of the direction:
CITY OF WANNEROO
Planning and Development Act 2005
DIRECTION
TO:CARMINE CARBONE
OF:8 Walton Place, QUINNS ROCKS, WA 6030
BACKGROUND
1.You are the owner of land situated at 8 Walton Place, Quinns Rocks, being Lot 473 on Plan 7798 and being the whole of the land described in Certificate of Title Volume 14 Folio 331A ('Land').
2.The Land is located within the district of the City of Wanneroo ('City') which has its offices at 23 Dundebar Road, Wanneroo.
3.The development specified in the First Schedule hereto ('Development') was undertaken on the Land.
4.The Development was undertaken on the Land in contravention of the City of Wanneroo District Planning Scheme No. 2 ('Scheme') in that the development is required to comply with the Scheme and has been carried out otherwise than in accordance with the Scheme. Particulars of the contravention are specified in the Second Schedule hereto.
DIRECTION
1.Pursuant to section 214(3) of the Planning and Development Act 2005 (the Act) the City hereby directs you to alter the Development as specified in the Third Schedule hereto.
2.Should you fail to comply with this Direction within 60 days after the service of this Direction, you will commit an offence against section 214(7) of the Act and be liable to a penalty of $50,000 and in the case of a continuing offence, a further fine of $5,000 for each day on which the offence continues or, in the case of a body corporate, a penalty of $250,000 and a further fine of $25,000 in respect of each day on which the offence continues.
3.Within 28 days of being given this Direction, you may apply to the State Administrative Tribunal for a review of the decision to give this Direction.
FIRST SCHEDULE
The placement of fill on the Land to a depth of up to approximately 4 metres in the location hightlighted [sic] on the attached aerial photograph ('Fill').
SECOND SCHEDULE
1.Pursuant to clause 6.1.1 of the Scheme, no person shall commence or carry out any development unless the Council's approval has first been obtained.
2.The placement of the Fill on the land constitutes development and was carried out without the Council's approval having been obtained.
THIRD SCHEDULE
Remove the Fill from the Land.
Dated the day of 2009
...
MANAGER REGULATORY SERVICES
CITY OF WANNEROO
This Direction is given pursuant to the provisions of Section 214(3) of the Planning and Development Act 2005 and is issued by and under the direction of the City of Wanneroo.
Evidence
The evidence including the photographs available to the Tribunal showed the extent of the fill which had been placed on the land. Mr Bracone, at paragraphs 38 - 42 of his statement stated:
38.While the Applicant has not applied for planning approval under the Codes for the fill already placed on the Land or any additional fill to be placed on the Land, it is apparent that the purposes of the proposed retaining wall will be to retain fill on the Land.
39.The City would not approve the placement of fill on the Land to a height level with the top of the retaining wall because to do so would also be inconsistent with the acceptable development provisions and performance criteria of the Codes.
40.The relevant acceptable development provision for the filling of land is contained in clause A1.4 of Part 6.6.1 of the Codes, which provides:
'Subject to A1.2, filling behind a street setback line and within 1 metre of a common boundary not more than 0.5 m above natural ground level at the boundary except where otherwise stated in a local planning policy or equivalent.'
41.The proposed retaining wall will retain up to approximately 4.5 metres of fill above natural ground level at the northern and wester[n] boundaries of the Land. As a result, the fill which the proposed retaining wall would retain does not meet the acceptable development provisions of the Codes.
42.The performance criteria for fill is contained at clause P1 of Part 6.6.1 of the Codes and provides:
'Development that retains the visual impression of the natural level of a site, as seen from the street or other public place, or from an adjoining property.'
Mr Carbone did not deny that he had placed fill on the land and stated in direct evidence:
CARBONE, MR: I've tried - I've not tried to hide anything. I do my best. If there's something - like you say - I now got a couple of stumps tree there, but whatever it is going to be pulled out, if I need to do now or whenever need to be done, I do it even before the wall going to be built, if I have to do that.
SPILLANE, MR: Okay.
CARBONE, MR: I get a bulldozer there, I try to shift the sand, dig down, everything, whatever, it's - the sand, when going to be put there, going to be clean. If there's anything illegal going to be out of there.
And later he stated:
… Well, the sand fill, right, for what reason they want me to move it out. Doesn't make any sense when I spend a lot of money sort of to move the sand fill out. Why - I should be able to get a bulldozer. Like I say, even if an engineer want to be there sort of see the sand fill that stay there - it stay - they send the full - if there's any material like shown in the photo there, got a couple of stump, tree stump, so they can be pulled out. Even the rest of fill there if they want the machine to go through to find out if it's any organic material, that can be done. I got no trouble for that, but I refer sort of if the fill stay there where is. (T:32, 12.10.10)
The applicant provided the Tribunal with a copy of a letter from Mr Joe Algeri, a planner, dated 16 December 2009, which had been written to Mr Carbone headed 'Advice based on site visitation - propose fill & retaining - Lot 473 (No 8) Walton Place, Quinns Rock[s]'. Mr Algeri had stated as follows:
Given this discretion, it is clear that the proposed development is capable of approval under the relevant statutory framework discussed above. Moreover, I am of the view that there is potential for the development to be approved based on the following merit[-]based rational[e];
i)Foremost, the subject land has historically been significantly levelled and filled. This fill and the height of the subject land generally means that, from many positions around the subject land, there are already significant views and vistas into neighbouring properties and across the locality. It is my view that further extension of this fill will not further exacerbate any overlooking issues that may currently exist.
ii)The proposed development has the potential to increase the development viability of the subject land. The subject land has the potential to accommodate three dwellings based on the minimum average land area requirement of Table 1 of the R-Codes. If not now, a future owner or developer would be likely to propose a similar development.
iii)Finally, the proposed development will allow for on-going maintenance of the vegetation and boundary fencing surrounding the subject land which is currently difficult to access and maintain. It will stabilise the existing slope which otherwise can be easily degraded. It will also allow for the maintenance of vegetation which could also be a fire hazard.
In addition, by letter of 11 September 2009, the City had written to the applicant in respect of the unauthorised fill and at page 2 under the heading 'Alleged Contaminated Fill' stated:
The City has reason to believe that the fill does not comply with Australia Standard 2870 in that there may be foreign materials within the fill such as green waste and building and other rubble.
Because the City has been advised of the alleged contamination, this imposes a responsibility to warn potential buyers that the fill is unauthorised and may also be uncompactable, which would prevent it being built upon. A warning to this effect has been placed into the City's computer system to inform potential buyers. This warning will remain on the system until the matters are resolved to the City's satisfaction.
The suggested method for resolving these matters is to deal with the DA issue first.
Should the DA not be approved[,] you obtain the right of appeal to the State Administration Tribunal. If the DA is resolved in your favour, either by approval or by a successful appeal, you can then deal with the contamination issue by conducting a geo-technical evaluation of the fill.
Therefore, the potential outcomes are:
a)if you don't obtain a DA by either means, you must remove all fill;
b)if you do obtain a DA and the geo-technical report is clear, then the fill can remain; or,
c)if a DA is issued but the geo-technical reports finds contaminants, you can either remove the fill, or remove the contaminants.
Consideration
In previous decisions, the Tribunal has decided that placing of fill on land is development for which planning approval is required: see Singleton and Town of Port Hedland [2007] WASAT 188 and Smart and Town of Port Hedland [2008] WASAT 74. In the present case, it was clear that fill had been placed on the land without the relevant approval of the local authority.
The respondent would therefore appear to have good reason to issue a direction pursuant to s 214 of the PD Act.
However, in deciding whether the respondent had correctly exercised its discretion to issue the s 214 direction and whether that decision should be affirmed, the Tribunal must first look at the legislative framework which authorises such a direction to be issued.
Section 214 of the PD Act is headed 'Directions by responsible authority regarding unauthorised development' and states:
(1)For the purposes of subsections (2) and (3) -
(a)a development is undertaken in contravention of a planning scheme or an interim development order if the development -
(i)is required to comply with the planning scheme or interim development order; and
(ii)is commenced, continued or carried out otherwise than in accordance with the planning scheme or interim development order or otherwise than in accordance with any condition imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme or interim development order;
...
(2)If a development, or any part of a development, is undertaken in contravention of a planning scheme or an interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the planning scheme, interim development order or planning control area requirements.
(3)If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development -
(a)to remove, pull down, take up, or alter the development; and
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.
...
(6)A direction under subsection (3) or (5) is to specify a time, being not less than 60 days after the service of the direction, within which the direction is to be complied with.
(7)A person who -
(a)fails to comply with a direction given to the person under subsection (2); or
(b)fails to comply with a direction given to the person under subsection (3) or (5) within the time specified in the direction, or within any further time allowed by the responsible authority,
commits an offence.
Section 214(6) of the PD Act is a clear statutory requirement that any direction under s 214(3) of the Act must specify a time 'being not less than 60 days after the service of the direction, within which the direction is to be complied with'. No such time was specified in the s 214 direction furnished to the applicant in this case.
In Fermanis Investments Pty Ltd v City of Perth [1978] WAR 33, (1977) 43 LGRA 1, Brinsden J, dealing with a notice issued under the LG(MP) Act, stated:
... A local authority has extensive powers conferred upon it by statute to regulate building construction, to oversee the preservation of buildings so that they remain fit and habitable and to see that buildings which may become unsafe or prejudicial to the public interest are repaired or altered or demolished so that they do not constitute a danger to those using them or other members of the public. Local authorities employ building surveyors and other qualified staff to enable them to carry out the obligations imposed on them by statute. Indeed the particular statute in question contemplates that a local example of the reference to building surveyor in ss 6, 373(3), 375(1), and other sections where the building surveyor is specifically referred to (eg s 401(4)). It therefore seems to me not to be unreasonable to assume that the legislation is so framed as to require local authorities to equip themselves with expert assistance to enable them to make proper recommendations and directions to remedy the mischief complained of. Owners and builders are protected from notices lightly issued by local authorities by the system of review provided ...
And later at page 8 in referring to an English decision stated:
In Miller-Mead v Minister of Housing and Local Government [1963] 1 All ER 459; [1963] 2 QB 196 at 232, Upjohn LJ said as follows: 'The whole question, therefore, now is whether the notice complies with s 23. One must remember the words of Lord Simon in the Bridlington case [1957] App Cas 223 at 238, that the court must insist that strict and rigid adherence to formalities, for the rights of owners and occupiers are being subjected to interference. This interference, however, on the other hand, is for the common good and the powers are entrusted to responsible public bodies of great experience. The requirements of the section must be interpreted with reasonableness in all the circumstances of the case. With all respect to Carter's case [1960] 1 QB 242, the function of the court is not to introduce strict rules not justified by the words of the section. I repeat, therefore, that in my judgment the test must be: does the notice tell him fairly what he has done wrong and what must he do to remedy it?'
This Tribunal agrees that it is not the function of this Tribunal to introduce strict rules not justified by the section, however, it is important to ensure that, where the section specifies a particular requirement, that requirement is met, particularly in circumstances where, as Brinsden J stated:
Local authorities employ building surveyors and other qualified staff to enable them to carry out the obligations imposed on them by statute.
It is clear that unauthorised fill has been placed on the applicant's property and, for reasons such as the stability of the fill including satisfactory compaction and the correct identity of the composition of the fill, it is important that Council approval is sought prior to placing fill on land or following adequate testing.
Conclusion
Although satisfied on the evidence that there appears to be valid grounds for issuing a s 214 direction, the Tribunal is not prepared to affirm the direction in this case which does not comply with the specific requirements of the legislation, in particular s 214(6) of the PD Act.
In the circumstances, the decision to issue the under s 214 on or about October 2009 will be set aside and the direction revoked.
DR 324 of 2010
Background
As outlined earlier in CC 633 of 2009, Mr Carbone filed a building licence application for a retaining wall with the respondent on 16 February 2009, but no reviewable decision or deemed refusal had occurred prior to the application for review being lodged which could be reviewed by this Tribunal.
When that fact became apparent during the hearing on 12 October 2010, it was agreed that it was in all parties' interests, particularly in light of the history of the matter, that, if possible, all matters be dealt with.
In the circumstances, the Tribunal made arrangements, with the consent of the respondent, for Mr Carbone to file a new application for the review of a refusal he had received in October 2009 in respect of a Codes Approval application he had made to the City in May 2009.
Time was extended for the application for review to be made, an application was filed by Mr Carbone and the matter brought on for hearing immediately after the filing on 12 October 2010. The Tribunal also waived the filing fee for the new application. That new application number was DR 324 of 2010.
The decision sought in DR 324 of 2010 was stated by Mr Carbone as being:
... to keep the sand fill and to build a retaining wall and review the refusal of my Codes Approval application dated 19 May 2009.
Facts
On 20 May 2009, Mr Carbone had filed a Codes Approval Application under the 2008 Codes with the City requesting it to exercise its discretion, stating:
To allow to build a retaining wall and privacy wall on existing sand fill.
This will allow adequate privacy for neighbours as there is no privacy now.
Please take into consideration the plans and applications submitted to approve this request.
By letter of 26 May 2009, the City wrote to adjoining neighbours seeking comment, stating:
The City has received an application for approval to commence development for the above proposal. The proposed retaining wall is in excess of 1,000 mm along the side and rear boundaries. The maximum retaining wall height of approximately 4,000 mm and actual ground level is proposed. See attached site plan for further information.
Two replies were received from neighbours, neither of whom objected to the application outright; however, one neighbour wished to ensure that any walls were built on the correct boundary line, and the other wished to ensure that the base of any retaining wall would be built at natural ground level and not on the fill already on the applicant's lot.
At its meeting of 25 August 2009, Council passed the following resolution in respect of the application:
The Council refused the application for the R Codes variations for the proposed retaining wall as it exceeds the acceptable development provisions of the R Codes and the City's policy.
Evidence
Apart from the oral evidence the applicant put forward at the hearing, which is referred to below, the applicant relied on a letter from Mr Algeri dated 16 December 2009 referred to earlier. In that letter, Mr Algeri outlined the various discretions Council had to approve the application and stated:
You have advised me that you have partially filled and wish to further retain the northwestern part of your property; more specifically, the rear and side boundary of the subject land ('the development'). I also understand that this matter has been subject to various applications and investigation by the Local Government and furthermore, there are various review processes and Court proceedings currently in train. Having not perused any of the documentation thoroughly in this regard, I wish to comment only on the potential for your development to be potentially approved.
Discussion of planning framework
Clause 4.4.3 of DPS2 outlines that[:]
'Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes[.']
It is therefore required that any development be subject to the appropriate provisions of the RCodes. Clause 6.6.1 of the R-Codes explains that;
'Subject to Al.2, filling behind a street setback line and within lm of a common boundary not more than 0.5m above the natural level at the boundary except where otherwise stated in a local planning scheme[.]'
It is apparent that the proposed development to fill and retain a portion of the subject land will exceed the provisions of this clause. However, discretion to approve the proposed development is afforded under Clause 4.2.1 of DPS2 whereby[:]
'... If a development is the subject of an application for Planning Approval and does not comply with a development standard, or requirement prescribed under the Scheme or the Residential Design Codes, the Council may, notwithstanding the noncompliance, approve the application conditionally or subject to such conditions as the Council thinks fit[.']
Given this discretion, it is clear that the proposed development is capable of approval under the relevant statutory framework discussed above. ...
The applicant also relied on an undated letter from Mr DW Nicholls, a consulting engineer, which stated:
To whom it may concern
RE: Proposed retaining walls for Lot 473 Walton Place, Quinns Rock
In relation to the proposed retaining wall this office designed in April 2008.
Mr Carbone wished to maximise the views from his back yard and also increase the useability of the block, as at the present time the block sloped fairly steeply down towards the northwest corner making that portion unusable.
With this in mind the retaining walls were designed so that the back yard from the residence to the boundary was level, which meant in the North West corner the retaining wall was a maximum of 4.5m but was quickly reduced in height as the retaining walls went down the northern and western boundaries.
The retaining walls were designed to be placed on the boundary and later if need be a fence to be constructed on it. The design of the retaining walls reflected this.
To the best of our knowledge the drawings this office produced [were] an accurate representation of the block, with the retaining walls being shown on the boundary of the block, with the face of the wall being on the boundary and the retaining wall being located solely on Mr Carbone's block.
...
At the hearing, Mr Carbone stated his views on a number of occasions which, in essence, were that he had seen other walls in the area which people had been allowed to build and he believed he should be entitled to do the same. Furthermore, it was his land, and he should be entitled to do what he wanted and that all he was attempting to do was obtain some privacy.
Mr Carbone stated:
And the wall, the same thing, because everywhere else - like I say, everywhere else, the people, they got a property, they got their rights to build a retaining wall there. It's not five and a half metre like the gentleman say, going to become - I know the sand fill, it's a bit high there, but they going to come down when it's split around against the wall, because going to become - I only want the wall to become the same level than the rest and right in the corner going to be about four and a half metre.
Right? --- And everywhere else - like, I should have the right, like everybody else, to build the wall on the boundary, because like I said before, I don't hide - I not doing any damage to the neighbour, because if they build higher I should be the man to complain, because they hide the view, but I'm not going to hide any view to them. With the wall that I try to build I not hide any view to nobody. I only try to make it the properly - to be level. I can keep that property clean. I can put the fence right around so everybody can have privacy. I should have the right sort of to have my privacy like everybody else. (T:59, 12.10.10)
When it was put to Mr Carbone that he could set back the wall from the boundary in a tiered formation in order to reduce the bulk and scale, he stated:
And why should I come back three metre[s] if everybody else is allowed to put a wall in the boundary? (T:62, 12.10.10)
And later:
How come in some other place a wall it's built eight metre[s]? Why I'm not allowed - it cost a lot of money. Like I said before, the land cost a lot of money. Why should be allowed to level it up and use all the ground that I pay for? (T:104, 12.10.10)
Mr Bracone, the Manager of Planning Implementation for the City, gave evidence and furnished a written statement. In respect of the retaining wall he stated:
14.On 16 February 2009, the City received an application for a building licence from the Applicant to construct additions to the existing dwelling and a retaining wall on the Land ('Application'). A copy of the Application and the associated plans are located at documents 6 and 7 of the Bundle respectively.
15.The proposed retaining wall is to be constructed along the northern and western boundaries of the Land.
16.The part of the retaining wall to be constructed along the western boundary is approximately 27 metres long and up to 4.5 metres in height. The part of the wall to be constructed along the northern boundary of the Land is approximately 30 metres long and up to 5.2 metres in height.
17.Because the proposed retaining wall did not comply with the Acceptable Development Provisions of the Residential Design Codes ('Codes'), the City requested the Applicant apply for approval under the Codes.
18.On 19 May 2009, the City received an application for approval for the proposed retaining wall under the Codes. A copy of that application is located at document 10 of the Bundle[.]
19.On 26 June 2009, the City requested the Applicant to consider alternative designs for the proposed retaining wall. A copy of the City's letter to the Applicant is located at document 11 of the Bundle.
20.No alternative designs for the proposed retaining wall were received.
21.On 15 October 2009, the City refused the Application because the proposed retaining wall does not meet the Acceptable Development provisions or the Performance Criteria specified in the Codes.
In his oral evidence, Mr Bracone confirmed what he had stated in his written evidence, which was that, although the respondent was prepared to approve a retaining wall on the applicant's property, it was not prepared to approve it in the form that Mr Carbone wanted or had applied for. Mr Bracone was of the opinion that a tiered structure as had been suggested by the respondent would minimise the bulk and scale and be a better outcome in respect of orderly and proper planning.
Consideration
The respondent's planning scheme, DPS 2, requires residential development to comply with the current Residential Design Codes of Western Australia (2010) (2010 Codes) which themselves make provision for an approval process.
Council's decision in respect of a Codes Approval Application is a discretionary decision made under DPS 2 in respect of which an applicant has a right of review to this Tribunal under s 252 of the PD Act.
The 2010 Codes were updated as recently as November 2010 and were described in that update as follows:
The Residential Design Codes are a Western Australian institution where a long tradition and a high level of acceptance in local government, industry and the community. The RCodes provide a sound, stable and uniform basis for shaping residential development across the [S]tate, delivering attractive streetscapes and maintaining neighbourliness.
When applications such as the present one are made, it was recognised by both Mr Algeri and Mr Bracone that there is room for discretion. However, that discretion is to be exercised having regard to orderly and proper planning.
Part 2.1.3 of the 2010 Codes provides:
All residential development is to comply with the requirements of the codes and, notwithstanding that under any other provision of the scheme, residential development (including construction of a single house) may be exempted from or does not require planning approval, prior approval under and in accordance with the codes (codes approval) is required if the proposed residential development:
(a)does not conform with the acceptable/or development provisions of parts 6 and 7 as appropriate; or
(b)requires the exercise of discretion by council in respect of any matter under the codes.
The acceptable development provisions for retaining walls are set out at A3 of Pt 6.3.3 of the 2010 Codes and provide:
Retaining walls setback from common boundaries in accordance with the setback provisions of table 1, tables 2a and 2b, and figure 3.
To constitute acceptable development in the present case, the proposed retaining wall would need to be set back between 1.5 metres and 2.0 metres from the northern boundary and between 1.5 metres and 1.8 metres from the western boundary.
The retaining wall proposed by the applicant is planned to be located on the northern and western boundaries of the land with a nil setback from either boundary and would therefore not meet the acceptable development provisions of the 2010 Codes.
Where approval under the 2010 Codes is required, cl 2.5.1 provides:
... Subject to clauses 2.5.2 and 2.5.3, the council is to exercise its discretion in considering such applications having regard to the considerations, standards and requirements provided in the Codes.
The considerations referred to are specified in cl 2.5.2 of the 2010 Codes and state:
Discretion shall be exercised having regard to the following considerations:
(a)the stated purpose and aims of the scheme;
(b)the provisions of parts:
(i)1-5 of the codes, as appropriate; and
(ii)the provisions of part 6 where the application involves a single house(s), grouped dwellings, or multiple dwellings in areas with a coding of less than R30;
(iii)the provisions of part 7 where the application involves a multiple dwelling in areas with a coding of R30 or greater and within mixed use development and activity centres;
(c)the performance criterion or criteria in the context of the coding for the locality that corresponds to the relevant provision;
(d)the explanatory guidelines of the codes that correspond to the relevant provision;
(e)any local planning strategy incorporated into the scheme;
(f) provision of a local planning policy pursuant to this policy and complying with clause 2.5.3; and
(g)orderly and proper planning.
The performance criteria for retaining walls is specified in cl P3 of Pt 6.3.3 of the 2010 Codes and states:
Retaining walls designed or set back to minimise the impact on adjoining properties.
The retaining wall proposed by the applicant is proposed to be located directly on the property boundaries with a nil setback and will be up to approximately 5 metres in height at certain points.
Council considered that such a retaining wall would have a significant impact on adjoining properties and would not be in the interests of longterm orderly and proper planning, particularly when a 1.8 metre high boundary fence may later be erected on top, creating a potential wall face of approximately 7 metres in height. The Tribunal agrees with this view.
Clause 2.5.2 of the 2010 Codes also requires the City, and in the present case, the Tribunal, to have regard to the City of Wanneroo Planning Policy 'Establishing Building Pad Levels, Excavation, Fill and Retaining Associated with Residential Development'.
Mr Bracone gave evidence that cl 3.0 of that policy provides that, in addition to considering the criteria for determining whether an application for codes approval for a retaining wall, meets the performance criteria specified in the 2010 Codes, one must also consider other matters, including:
Any alternative design options which may exist; and
The general principals of the Policy.
Mr Bracone confirmed that the City considered an alternative design option would be to terrace the retaining walls and that it had been suggested to the applicant prior to refusing his application that he submit an alternative proposal but he declined to do so.
The Tribunal is not satisfied that the retaining wall as proposed by the applicant meets the performance criteria contained in Pt 6.3.3 of the 2010 Codes or the City's policy.
Although it is clear that the respondent is prepared to grant approval for some form of retaining wall and has asked the applicant on a number of occasions for alternative designs, the applicant is adamant that the design he furnished with his initial application should be approved and he is not willing to consider any compromise. This is most unfortunate.
The applicant points to other large retaining walls in and around the City which, he says, have been given approval, and believes he should be given the same approval.
However, many of the examples the applicant referred to, were clearly part of major infrastructure carried out at the time of subdivision and, in many cases, faced public open space.
The applicant has put no evidence whatsoever before this Tribunal to satisfy it that the refusal of his Codes Approval Application was incorrect and should be set aside; rather, all of the evidence points to the fact that the decision of Council was the correct one.
Conclusion
The Tribunal is satisfied that the retaining wall as proposed by the applicant would be oppressive in terms of bulk and scale and would not, as designed, minimise the impact on adjoining properties as is required by Pt 6.3.3 of the 2010 Codes.
In the circumstances therefore, the application for review will be dismissed and Council's decision of 28 August 2009 will be affirmed.
Closing comment
In concluding this matter, it is necessary to refer to a matter on which the applicant spent much of his direct evidence commenting that is, that he believes there is a conspiracy amongst parties to act to his detriment and steal his land.
At one point during his direct evidence, rather than interrupt, the Tribunal allowed Mr Carbone to go on for some considerable time to outline and put on record all of the issues that concerned him, at the end of which, the Tribunal asked:
... you believe that in there somewhere there is a conspiracy?
Mr Carbone replied:
... there is. Right? --- Not 100 per cent, 200 per cent. (T:66, 12.10.10)
The Tribunal could find no evidence of such conspiracy but there is little doubt that Mr Carbone is absolutely convinced of its existence and that every suggestion or compromise that is put forward, even if it is in Mr Carbone's interests, has been, and is likely to be, met with a high level of suspicion and distrust.
It is clear that the City is willing to approve a certain amount of fill being brought onto the property, but it must be satisfied as to its stability and composition as it rightly should be. Furthermore, it is clear that the City is willing to approve some form of retaining wall, but what it is seeking is something that meets the criteria set out in the 2010 Codes.
There is therefore middle ground that could, in the Tribunal's view, be reached; however, due to the applicant's beliefs in a conspiracy, it may be difficult to ever reach such a compromise solution.
Determinations
The Tribunal's determinations in respect of each of the three matters are therefore as follows:
CC 633 of 2009
For the reasons given above, this matter will be struck out and the application dismissed.
DR 419 of 2009
For the reasons set out above, the decision to issue the undated s 214 Direction on or about October 2009 will be set aside and the direction revoked.
DR 324 of 2009
For the reasons given above, the application for review filed at the Tribunal on 12 October 2010 will be dismissed and the City of Wanneroo's decision to refuse the Residential Design Codes of Western Australia (2008) Approval Application dated 28 August 2009 will be affirmed.
Orders
CC 633 of 2009
This matter is struck out and the application is dismissed.
DR 419 of 2009
The decision to issue the undated s 214 Direction on or about October 2009 is set aside and the direction is revoked.
DR 324 of 2009
The application for review filed at the Tribunal on 12 October 2010 is dismissed and the City of Wanneroo's decision to refuse the Residential Design Codes of Western Australia (2008) Approval Application dated 28 August 2009 is affirmed.
I certify that this and the preceding [116] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
2
4