Christie and Town Of East Fremantle
[2010] WASAT 160
•3 NOVEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CHRISTIE and TOWN OF EAST FREMANTLE [2010] WASAT 160
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 3 NOVEMBER 2010
FILE NO/S: DR 302 of 2010
BETWEEN: BRONWYN JANE CHRISTIE
Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law Town planning Development application Boundary fence in front setback area Piers and caps Determination of height Whether 'ground level' is top of garden bed in planter Whether failure to give proper, genuine and realistic consideration to effect of landscaping that could be installed adjacent to fence without approval on views from adjoining property Words and phrases: 'ground level'
Legislation:
Planning and Development Act 2005 (WA), s 244, s 244(2)
State Administrative Tribunal Act 2004 (WA), s 3(1)
Town of East Fremantle Town Planning Scheme No 3, cl 8.2(d)
Result:
Application for review of Tribunal's determination allowed
Condition 1 of development approval granted by respondent on 15 December 2009 for boundary fences with 26 associated masonry piers and pier caps at No 18 (Lot 5049) Munro Street, East Fremantle deleted
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms G Basley (Public Sector Employee)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Christie and Town of East Fremantle [2010] WASAT 124
Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Williams v Minister for the Environment and Heritage (2003) 74 ALD 124
REASONS FOR DECISION:
Summary of judicial member's decision
Ms Bronwyn Christie sought review by a judicial member of a determination of the Tribunal in which it affirmed the decision of the Town of East Fremantle to impose a condition on approval of boundary fences with masonry piers and pier caps requiring that a number of the piers be reduced in height to 1.8 metres. Ms Christie contended that the Tribunal had misconstrued the meaning of 'ground level' in a planning policy and that, in fact, some of the piers in question were less than 1.8 metres above 'ground level'. Ms Christie also contended that the Tribunal had failed to take into account a relevant consideration, namely, the impact of landscaping that she could install adjacent to the fences without development approval on views enjoyed from a neighbouring property across the frontage of Ms Christie's property.
The President determined that the Tribunal had not erred in the interpretation of the policy. 'Ground level' referred to the level of the earth's solid surface and did not include a garden bed within a constructed masonry planter.
However, the President also determined that the Tribunal erred in that it failed to give proper, genuine and realistic consideration to the effect of landscaping that could be installed without development approval on views from the adjoining property across the front of Ms Christie's property. Landscaping adjacent to the common boundary between the properties could have the same impact on views as the fences in question.
The President, therefore, allowed the application for review and deleted the condition requiring the fence piers to be reduced in height.
Application for review by judicial member
Ms Bronwyn Christie has made an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review by a judicial member of the determination made by the Tribunal on 30 August 2010 in Christie and Town of East Fremantle [2010] WASAT 124 (reasons). In its determination, the Tribunal affirmed the decision of the Town of East Fremantle (Town or Council) to impose two conditions on a restrospective development approval for boundary fences with 26 associated masonry piers and pier caps at Ms Christie's residential property at No 18 Munro Street, East Fremantle (site).
Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Ross Easton, who is not a legally qualified member.
Condition 2 of the development approval imposed by the Town and affirmed by the Tribunal stated that the approval 'does not extend to any element of the pier caps located outside the applicant's property boundaries'. Ms Christie does not challenge the Tribunal's decision to affirm condition 2.
Condition 1 imposed by the Town stated that 'the fence piers [are] to be reduced to a height of 1.8 metres within 60 days'. Through mediation in the Tribunal, the parties agreed that the dispute related solely to piers 16 26 inclusive and that piers 1 15 inclusive did not have to be reduced in height. Piers 16 26 are located in the front setback area of the site, between the façade of the dwelling and the Munro Street frontage.
The Tribunal determined that piers 16 26 exceed 1.8 metres in height by 0.3 metre (one pier), 0.33 metre (three piers), 0.34 metre (four piers), 0.37 metre (two piers), 0.43 metre (one pier) and 0.51 metre (one pier). The Tribunal affirmed condition 1 in relation to piers 16 26 inclusive for the following reasons which it stated at [89]:
The Tribunal … found that although the overheight piers did not have an adverse impact on the streetscape, they did have an adverse impact on the amenity of an adjoining neighbour caused by loss of views. The Tribunal rated the loss of the partial but significant views as moderate to severe. The Tribunal also found that a more skilful design would have overcome the problems and that, in those circumstances, the loss of views was considered to be 'unacceptable'.
The 'adjoining neighbour' on account of the impact upon which condition 1 was affirmed in relation to piers 16 26 inclusive is No 16 Munro Street. The 'partial but significant views' which the Tribunal found would be adversely and unacceptably impacted upon by the piers, at the date of the Tribunal's determination, were enjoyed from No 16 Munro Street across the front setback area of the site. However, these views are no longer enjoyed from No 16 Munro Street, because Ms Christie has in the interim installed dense landscaping in a masonry planter adjacent to the common boundary between No 16 Munro Street and the site.
Ms Christie contended that the Tribunal erred in law in two respects in its determination to affirm condition 1 in relation to piers 16 26 inclusive. First, Ms Christie submitted that the Tribunal misinterpreted the meaning of the expression 'ground level' in cl 5.1 of the Town of East Fremantle Policy on Local Laws relating to Fencing (Fencing Policy). In particular, Ms Christie argued that the expression 'ground level' includes the top of the garden bed in masonry planters that she has constructed adjoining the fence. The garden bed is approximately 0.35 metre above the adjoining principal level of the front setback area. Consequently, Ms Christie argued that piers 16, 17, 18, 19, 23 and 24 are already no higher than 1.8 metres above 'ground level'.
Secondly, Ms Christie submitted, in essence, that, in its determination, the Tribunal failed to take into account a relevant consideration, namely, the impact of landscaping that she could install in the garden beds adjoining the fence on views from No 16 Munro Street across the front setback area of the site. Ms Christie argued that, as was the case prior to the construction of the dwelling and associated structures on the site, landscaping in the front setback area of the site would, in itself, block views from No 16 Munro Street. She submitted that the Tribunal's determination in relation to condition 1 should be set aside.
Proper interpretation of 'ground level'
It was common ground between the parties that any fences exceeding 1.8 metres in height required development approval. The method for measuring height is prescribed in Pt 5 of the Fencing Policy as follows:
5.1The height of a fence is defined as the vertical distance between:
(a)the top of the fence at any point; and
(b)the ground level or where the ground levels on each side of the fence are not the same the higher ground level immediately below that point.
As the Tribunal noted at [36] of the reasons, the expression 'ground level' is not defined in the Fencing Policy or in the Town of East Fremantle Town Planning Scheme No 3 (TPS 3). At [39] of the reasons, the Tribunal determined that 'the height of fences should be measured from the finished ground level' as this is 'the only reasonable way to make any sense of cl 5.1(b) of the Fencing Policy'. At [48] of the reasons, the Tribunal rejected, as 'a specious argument', the submission put on behalf of Ms Christie that the 'ground level' for the purposes of cl 5.1 of the Fencing Policy can be increased by constructing garden beds up to 0.5 metre above the finished ground level.
In the review application before me, Ms Christie pressed the argument that:
The provisions of the respondent's Fencing Policy allow for the height measurement of the pier/caps to be taken from the finished/approved ground level including any minor fill (less than 500 millimetres) which does not require planning approval.
Ms Christie submitted that this interpretation of the expression 'ground level' accords with its literal meaning. Ms Christie also referred to cl 8.2(d) of TPS 3 which states that 'minor filling or excavation of land, provided there is no more than 500 mm change to the natural ground level' does not require development approval. Finally, Ms Christie submitted that the acknowledgement in cl 5.1(b) of the Fencing Policy that the ground level can differ on either side of a boundary fence is 'to take account inter alia of retained fill such as in the applicant's retained garden beds'.
As the term 'ground level' in cl 5.1 of the Fencing Policy is not defined in the planning framework, it is to be given its ordinary and natural meaning. The noun 'ground' is relevantly defined in The Macquarie Dictionary (4th ed, 2005) at 629 as 'the earth's solid surface; firm or dry land'. 'Ground level' is, therefore, the level of the earth's solid surface in the relevant location. The level of a garden bed within a constructed masonry planter is not the level of the earth's solid surface and is not, therefore, 'ground level'. Rather than altering the 'ground level', the garden bed is something that sits on top of the 'ground level'. This is obvious from the photographs of the garden beds that were in evidence before the Tribunal and the photograph provided by Ms Christie of the landscaping that she has installed adjoining the common boundary with No 16 Munro Street in the interim.
The fact that development approval is not required under TPS 3 for minor filling of land does not alter the determination of the 'ground level' in this case. Ms Christie has not 'filled' the site adjoining the fence. Rather, she has constructed masonry planters and placed soil to form garden beds within the planters.
Finally, the fact that cl 5.1 of the Fencing Policy acknowledges that ground level can differ on either side of a boundary fence is not to take into account constructed masonry planters containing garden beds, but rather, genuine differences in levels due to topographical or physically constructed site conditions.
It follows that the Tribunal did not err in its interpretation of the expression 'ground level' in cl 5.1 of the Fencing Policy. Fencing piers 16 26 inclusive exceed a height of 1.8 metres above ground level to the extent found by the Tribunal.
Failure to take into account a relevant consideration
As noted earlier, the Tribunal affirmed condition 1 in relation to fence piers 16 26 inclusive because, although the piers 'did not have an adverse impact on the streetscape, they did have an adverse impact on the amenity of an adjoining neighbour caused by loss of views'. As also noted earlier, the views that the Tribunal found would be lost as a result of the piers exceeding 1.8 metres in height were obtained over the front setback area of the site.
However, Mr Peter Webb, a town planning consultant, gave the following evidence on behalf of Ms Christie before the Tribunal:
The common side boundary between the review site and that of the neighbour was previously landscaped with mature trees and foliage which blocked views in this direction. With the development of the review site, the land had to be cleared in order to build the side boundary fence whereupon the 'new' glimpses became available to the objecting neighbour. The intended landscaping will 'return' the boundary to its original state prior to the development with limited (if any) ocean glimpses available to that neighbour.
The Tribunal did not refer to this evidence in its reasons. The Tribunal did refer, at [64], to Mr Webb's argument that:
The 'glimpses' will be reduced further with more comprehensive landscaping of the review site. This will only become more dense over time.
However, it is clear from a reading of [64] [75] of the reasons (where the issue of view loss is considered), that the Tribunal failed to give 'proper, genuine and realistic consideration' (Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (Gummow J); Williams v Minister for the Environment and Heritage (2003) 74 ALD 124 (Wilcox J)) or, indeed, any apparent consideration to the effect of past and likely future landscaping in the front setback area of the site on the views available from No 16 Munro Street at the time of the Tribunal's determination. The impact of landscaping that could be installed without development approval in the constructed planters on views from No 16 Munro Street across the setback area of the site was plainly a relevant consideration in determining whether the fence piers should be reduced in height. The failure to give 'proper, genuine and realistic' consideration to a relevant matter for assessment involves legal error. The determination of the Tribunal in relation to condition 1 should, therefore, be revoked.
Section 244(2) of the PD Act authorises a judicial member to 'revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter'. In my view, having regard to:
•the evidence of Mr Webb set out earlier;
•the fact that the views in question were obtained across a side boundary and through the front setback area of the site;
•the fact that the views in question could be readily blocked by the placement of landscaping in constructed planters adjoining the fenceline to a height equivalent or greater than the fence piers (as has, indeed, occurred in the interim); and
•the finding by the Tribunal (which is not challenged) that the only reason for reducing the height of the fence piers was to mitigate loss of views from the adjoining property,
the correct and preferable decision in this case is to set aside condition 1. In the circumstances of this case, condition 1 serves no legitimate planning purpose.
The Town submitted in the application for review before me that 'the approved plans for the residence and the fence do not identify any 2 metre to 3 metre high hedge on the eastern boundary which only aids the neighbour's reasonable expectations as to be able to maintain iconic views'. However, the development includes constructed planters adjoining the fence. There would be a reasonable expectation that the planter would be planted with landscaping of a height likely to, again, block views from the adjoining property across the front setback area of the site.
Conclusion
The Tribunal did not err in law in the interpretation of the expression 'ground level' in cl 5.1 of the Fencing Policy. However, the Tribunal did err in law in failing to give proper, genuine and realistic consideration to a relevant matter, namely, the effect of landscaping on views previously enjoyed from the adjoining property across the front setback area of the site.
The determination of the Tribunal to affirm condition 1 in relation to piers 16 26 inclusive should be revoked and a determination should be substituted that condition 1 is set aside.
Orders
I make the following orders:
1.The application for review is allowed.
2.The determination of the Tribunal in DR 500 of 2009 to affirm (in relation to piers 16 26 inclusive) the decision of the respondent made on 15 December 2009 to grant conditional development approval for boundary fences with 26 associated masonry piers and pier caps at No 18 (Lot 5049) Munro Street, East Fremantle subject to condition 1 is revoked.
3.Condition 1 imposed by the respondent on 15 December 2009 on its approval for boundary fences with 26 associated masonry piers and pier caps at No 18 (Lot 5049) Munro Street, East Fremantle is set aside.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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