CHRISTIE and TOWN OF EAST FREMANTLE
[2010] WASAT 124
•30 AUGUST 2010
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | CHRISTIE and TOWN OF EAST FREMANTLE [2010] WASAT 124 |
| MEMBER | : | MR R EASTON (SENIOR SESSIONAL MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 30 AUGUST 2010 |
| FILE NO/S | : | DR 500 of 2009 |
| BETWEEN | : BRONWYN JANE CHRISTIE |
Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Conditions of development - Boundary fence in the front setback - Overheight piers - Measurement of height - Ground level - Loss of views - Encroachments - Dividing fences - Whether any of the fence piers 16 - 26 including capping, comply with height requirements - Whether any non-complying piers should be allowed at a varied height - Whether any encroachment across the boundary of any fence pier, particularly the capping, should be allowed
Legislation:
Planning and Development Act 2005 (WA), s 252(1),
[2010] WASAT 124
Town of East Fremantle Town Planning Scheme No 3, cl 2.2, cl 2.3, cl 8.1, cl 8.2
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr P Webb |
| Respondent | : | Ms G Basley |
Solicitors:
| Applicant | : | Peter D Webb & Associates (Town Planners) |
| Respondent | : | Town of East Fremantle |
Case(s) referred to in decision(s):
Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71 WASC
Pelliccione and Town of East Fremantle [2009] WASAT 143
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
[2010] WASAT 124
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 This matter involved an application for review of two conditions
associated with retrospective planning approval for a front fence with 26 associated masonry piers and pier caps at No 18 (Lot 5049) Munro Street, East Fremantle.
2 One condition required the height of the piers to be reduced to
1.8 metres and the other contested condition excluded planning approval for any encroachments of the fence outside the applicant's boundaries. As a result of mediation, the parties agreed to limit the dispute on height to piers 16 - 26 inclusive.
Therefore, the issues to be resolved were:
1) whether any of the fence piers 16 - 26, including capping, comply with height requirements; 2) whether any non-complying piers should be allowed at a varied height; and 3) whether any encroachment across the boundary of any fence pier, particularly the capping, should be allowed.
4 On the issue of encroachments, the Tribunal found that, in the
absence of a signed development application from the adjoining landowners and in the context of objections from both adjoining landowners, the Tribunal was unable to approve the issue of encroachments.
5 On the issue of compliance with height, the Tribunal determined the
correct method for measurement of height. The Tribunal found that, in the context of the planning framework including a fencing policy, the height was to be measured from finished ground level, and that finished ground level did not include the height of retained garden beds built next to the fence by the applicant. It followed that all piers 16 - 26 did not comply with height requirements.
6 The Tribunal then 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
[2010] WASAT 124
overcome the problems and that, in those circumstances, the loss of views
was considered to be unacceptable.
Therefore, the Tribunal found that none of the overheight piers should be allowed at the varied height.
8 It followed that the application for review should be dismissed and
the decision of the respondent affirmed, with condition 1 modified to
require the reduction in height of piers 16 - 26 inclusive.
Introduction
9 These proceedings involve an application brought by Ms Bronwyn Christie (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of East Fremantle (Town or Council) 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 (site). The fencing that is the subject of this review is located on two street boundaries and two adjoining side boundaries where the fencing is in front of the building line of neighbouring properties.
10 On 24 December 2009, the applicant applied to the Tribunal for a
review of condition 1 and condition 2 of development approval.
The conditions required:1) The fence piers to be reduced to a height of 1.8 metres within 60 days.
2) This approval does not extend to any element of the pier caps located outside of the applicant's property boundaries.
11 The boundary fencing is part of a completed larger redevelopment of
the site, including a new two storey dwelling with an undercroft garage. The original application for the dwelling was refused in February 2005. Following an unsuccessful application to the Tribunal, a revised proposal was approved by the Council in November 2006 and a building licence was issued in June 2007. Between June 2007 and May 2008 there were three further approvals issued for amendments.
| 12 | These various approved drawings included references to boundary fencing with the number of piers increasing from 14 to 22 and then to 28 in May 2008. These drawings included notes on the drawings stating |
[2010] WASAT 124
'1200 millimetres high screen fence piers and selected infill panels above
retaining walls'.13 It is apparent from the evidence that some of the approved plans
contained references to pier caps. There appears to be agreement between the parties that these pier caps were smaller than the caps as constructed. There also appears to be agreement that the boundary fencing and piers shown on drawings in 2008, and earlier, did not require development approval because they were equal to, or less than 1.8 metres high (the threshold height for a requirement for development approval).
14 At some time in 2009, it became apparent that some of the boundary
fencing as constructed, including pier caps, exceeded 1.8 metres in height
and an application for retrospective development approval was lodged.15 From the evidence, it is not possible or necessary to determine the
extent of variation from the fencing shown in the earlier drawings. However, one obvious variation is that the constructed fencing is completed with pier caps that are larger and higher than the caps shown on the drawings associated with the building licence.
Site and locality
16 The site has an area of 720 square metres and a rectangular shape,
with a street frontage of 30.58 metres to Locke Crescent, a truncation of 8.53 metres to the corner, and a street frontage of 14.08 metres to Munro Street.
17 The site slopes up from both roads and the finished ground floor
level of the dwelling is approximately 2.5 metres above the average adjoining road level of Locke Crescent and 1.5 metres above the average adjoining road level of Munro Street.
18 The relevant objecting neighbour adjoins the site on the Munro Street
frontage. The finished floor level of the neighbour's dwelling is 150 millimetres above the main floor level of the applicant's dwelling. The neighbour has limited views down Munro Street to the river and ocean. The views are partially screened by vegetation in the neighbour's front garden.
19 There are 180 degree views from the applicant's site, including views
to the north-east down and across Locke Crescent over housing to the Swan River; views to the north-west across Locke Crescent and open space to the Swan River, the Indian Ocean and Rottnest Island,
[2010] WASAT 124
and also views to the south-west across Munro Street and down
Locke Crescent to the Indian Ocean and the Swan River.20 The Tribunal had the benefit of a viewing of the site in the company
of the parties. The viewing included the neighbouring property at No 16 Munro Street in the company of the neighbour and representatives of the parties.
Planning framework
21 The site is zoned Residential and has a residential density coding of
R 12.5 under the Town of East Fremantle Town Planning Scheme No 3
(TPS 3 or Scheme).22 Clause 8.1 of the Scheme provides that all development requires
approval, except development described as permitted development in cl 8.2. Fencing is not described as permitted development in cl 8.2 of the Scheme. However, relevant to the matter of approval are cl 2.2 and cl 2.3 of the Scheme dealing with local planning policies.
23 The Council has adopted local planning policy Town of East Fremantle Local Laws Relating to Fencing (Fencing Policy). The Fencing Policy 'applies to all fences/walls forward of the building line of a property or forward of the façade (or façades for a corner lot) of the main residence'. The Fencing Policy provides that planning consent is required where a fence does not comply with the standards set out in the local law. It is common ground that part of the fence exceeds 1.8 metres (the maximum height permitted by the policy) and hence planning approval is required.
Also relevant is the Town's local planning policy regarding views (Views Policy).
The issues
25 The decision of Council does not describe or limit the number of
piers under contention. However, as a result of mediated outcomes and resultant orders issued by the Tribunal, the parties agreed to limit the extent of the dispute and, in particular, limited the issue of height to pillars 16 - 26. [Refer to Attachment A for a plan of the boundary fences and pillars].
26 However, since that agreement, the respondent, in its documents,
submitted arguments relating to the height of piers 1 - 15 in addition
[2010] WASAT 124
to piers 16 - 26. The applicant's submissions on height related to
piers 16 - 26.
To determine the extent of the issues before the Tribunal, it is necessary to consider the relevant history.
As a consequence of an agreement between the parties, on 21 April 2010 the Tribunal issued the following orders:
1. The pillars, which include capping, in dispute in this matter are those numbered 16 to 25 on Parker plan Revision A dated 15 April 2010 (correcting height of pillar 25 shown on Parker plan version dated 8 April 2010).
2. By 21 April 2010 the respondent is to take its own measurements of the pillars in question and is to inform the Tribunal and the applicant whether it accepts the height of pillars shown on the Parker Plan Revision A dated 15 April 2010, or maintains the heights set out in the table at paragraph 5.4 of its statement of issues facts and contentions filed 23 February 2010.
Later, on 14 June 2010, the Tribunal issued the following relevant
order:
1. Charles Parker and Paul Busby are to meet in the absence of the parties and their representatives, consider piers 16 to 26 on Parker Plan Revision A dated 15 April 2010 and produce a joint report setting out matters on which they agree, matters on which they disagree and why they disagree in particular identifying:
(a) the pillars where height is agreed; and (b) the pillars where height is not agreed and why height is not agreed.
30 The parties submitted the joint experts' statement and, although there
was disagreement between the experts, they limited their report,
as ordered, to piers 16 - 26.31 Finally, on 1 July 2010, the Tribunal issued orders relating to the
determination of the matter on the documents. In those orders, the issues
were defined as follows:2. By consent, the issues that remain between the parties are:
(i)
whether any of the fence pillars 16 to 26 including capping, inclusive, comply with height requirements and if not whether
[2010] WASAT 124
any non[-]complying pillars might be allowed at a varied
height;(ii) whether any encroachment across the boundary of any fence pillar, particularly the capping, might be allowed.
3. By 12 July 2010 each party must file with the Tribunal and provide to the other party in a single document, with relevant annexures if required, its submissions in relation to the issues in dispute.
The respondent's apparent attempt to reintroduce the height of piers 1 - 15 into the dispute is inconsistent with both order 2 and order 3. If the respondent did not consent to the defined issues, the correct path for the respondent to follow was to seek a directions hearing to dispute the orders issued by the Tribunal. The respondent had three opportunities to contest the extent of the dispute: subsequent to the orders dated 21 April, 14 June and 1 July 2010 respectively. If the reference in the respondent's submissions is an attempt to reintroduce the height of piers 1 - 15 into the dispute, the attempt is rejected by the Tribunal, because the respondent specifically consented to limit the dispute on height to pillars 16 - 26.
33 Therefore, the Tribunal finds that the two issues consented to by the
parties and described by the Tribunal in orders dated 1 July 2010 fully describe the extent of the dispute. For convenience and clarity, the Tribunal will separate the first issue into two parts. Hence, the following three issues arise for determination in this review:
1) Whether any of the fence piers 16 - 26 including capping, comply with height requirements.
2) Whether any non-complying piers should be allowed at a varied height.
3) Whether any encroachment across the boundary of any fence pier, particularly the capping, should be allowed.
The Tribunal will address each issue in turn.
Whether any of the fence piers 16 - 26 including capping, comply with height requirements
35 It is common ground between the parties that any fences exceeding
1.8 metres in height required planning approval. The method for
measuring height is described in Pt 5 of the Fencing Policy as follows:
5.1 The height of a fence is defined by the vertical distance between: [2010] WASAT 124
(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.
36 The policy does not define ground level and does not specifically
state whether the reference is to natural ground level or finished ground level. The definition of height in Appendix 1 of the Scheme is restricted to measuring building height and uses natural ground level.
37 Ms Gemma Basley, a town planner employed by the Town, stated
that the practice of the Council is to measure the height of fences from finished ground level or from the top of retaining walls where there is a height difference on either side of the fence.
38 Mr Peter Webb, a town planner acting for the applicant, argued at
one stage that the base level should be natural ground level rather than finished ground level. If the base level was found to be natural ground level, the finding would benefit the applicant because, as Mr Webb argued, there has been some excavation and since the natural ground level is higher than the finished ground level, the height measured in accordance with the definition is less than the actual existing height.
39 Before examining which piers, if any, are overheight, it is necessary
to determine the correct method for determining height. The Tribunal does not agree with Mr Webb and finds that the height of fences should be measured from the finished ground level. The reason for this finding is that it is the only reasonable way to make any sense of cl 5.1(b) of the Fencing Policy. There is unlikely to be any significant difference in natural ground levels across the width of a fence unless there is a retaining wall. The policy recognises that fences are sometimes used as retaining walls, with consequent changes to natural ground levels on one or both sides of the fence. The policy is clearly referring to finished ground levels when allowing that the height be measured from the higher level.
40 In addition to the above finding, there is one remaining question
relating to the meaning of ground level, and that is, whether the finished level of 500 millimetres of retained garden beds adjoining the fence may be used as ground level to measure height.
41 This question is central to the dispute between the parties concerning
the measurement of height. The parties submitted a joint expert statement (on the heights of the piers) by Mr Paul Busby (principal building
[2010] WASAT 124
surveyor for the respondent) and Mr Charles (Bush) Parker (licensed surveyor for the applicant). The experts generally agreed on the heights, except for those piers adjoining retained garden beds installed by the applicant. This problem is most easily understood by referring to Attachment A to these reasons and the following table reproduced from the experts' report.
Pier Charles Parker's Paul Busby's Pier Compliant? No: Survey results: Measured Heights according to CP 15/04/2010 results: 20/04/2010 Agree
Yes/No16 1.77m 2.14m No Yes 17 1.76m 2.14m No Yes 18 1.77m 2.14m No Yes 19 1.77m 2.13m No Yes 20 2.13m 2.14m Yes No (-0.33m) 21 1.80m (uncapped) 1.80 capped Yes Yes (2.13m capped) (2.10m capped) No (-0.33m) 22 2.13m 2.23m Yes No (-0.33m) 23 1.74m 2.17m No Yes 24 1.74m 2.13m No Yes 25 2.30m 2.31m Yes No (-0.50m) 26 2.13m 2.17m Yes No (-0.33m) 42 Of the 11 piers, the experts agree (with minor unexplained
variations) on the heights of five piers (piers 20, 21, 22, 25 and 26). The experts also agree that all these piers exceed the 1.8 metre height. (Pier 21 will exceed the height if the pier cap is added). It is apparent from the heights given for pier 21 that the pier caps are 300 - 330 millimetres high. It is also apparent that, without the pier caps,
[2010] WASAT 124
the piers would be less than 1.8 metres high and would not require
planning approval.
The experts do not agree on the height of six of the piers (piers 16, 17, 18, 19, 23 and 24). There is a simple explanation for the disagreement; the applicant has installed a 350 millimetre garden bed with an associated retaining wall adjoining the contested piers. Mr Parker has measured the pier height from the finished level of the garden bed whereas Mr Busby has measured the pier height from the finished ground level of the associated front terraces, paving or lawn, without allowing for the raised garden beds.
44 Mr Parker, supported by Mr Webb, argued that it is appropriate to
measure the height from the top of the retained garden bed. The essence
of their argument is that:
a) clause 5.1(b) of the Fencing Policy defines that the height of the fence is measured from the higher ground level adjoining the fence; b) in the absence of a definition of ground level, 'finished ground level' is the intended base level of the policy; c) in this case, the finished ground level is the finished level of the retained garden bed; and d) provided the height of the garden bed does not exceed 500 millimetres, planning approval is not required for the change in ground level associated with the garden bed.
45 Ms Basley disagrees, arguing that the ground level has already been
changed as a result of the planning approval for the associated dwelling. The Council approved a finished ground level (allowing for gradient variations for drainage) of approximately 32.5 for the paving and finished ground levels surrounding the dwelling (except for the northern end where lower levels were approved). The finished ground floor level of the dwelling is 32.5. Ms Basley argues that any changes to the approved finished ground levels and paving levels would be a variation to the existing approval and would require planning approval. Therefore, because the additional fill to the retained garden beds varies the approved finished external levels, planning approval is required.
[2010] WASAT 124
46 Mr Webb argued that the additional fill for the garden beds merely
returned the garden beds to the original level as part of the site was
excavated.47 The Tribunal agrees with Ms Basley. Although part of the site was
excavated, the finished floor levels, overall building height and finished ground levels were approved as part of a total planning application. Variations to the finished ground levels require approval from the Council. Ordinarily, this would not be a problem. However, in this case the applicant seeks to use the altered ground levels as a reason not to require approval of some fence piers.
48 It is a specious argument to artificially increase the height of the
ground level and then argue that such action decreases the height of the
fence.49 The Fencing Policy would be improved with a definition of ground
level. Nevertheless, without the definition, it is possible to determine the intended meaning of ground level in the policy. The policy only applies to fences in the setback areas adjoining streets, and refers to the clauses associated with the streetscape elements of the Residential Design Codes (Variation 1) (2008).
50 The applicant's fence is associated with an extensive front yard
wrapping around two sides of a large dwelling. Despite significant variations in the finished ground levels in the verge areas adjoining the dwelling (there are typical falls of 1.5 metres across the verges), the 'front yard' is finished flat at approximately 100 millimetres below the finished ground floor level of the dwelling. The only exceptions are the raised garden beds. The garden beds must be viewed in context of all the associated levels. A good example is the garden bed between pier 18 and pier 19, where: road level is 30.67; footpath level is 30.74; the verge slopes from approximately 30.77 to 32.5 on the outside of the fence; there is then a retained garden bed with an assumed level of around 32.9, and then the extensive front yard drops down to 32.5. The height of the garden bed is an anomaly, and a cross-section taken from the road to the house, would clearly demonstrate that the garden bed is an artificial construct with an artificial level adjoining the boundary fence. It would be contrary to the principles of orderly and proper planning to accept the applicant's attempt to avoid the need for planning approval of piers which clearly exceed 1.8 metres in height within the context of the space that the fence defines.
[2010] WASAT 124
51 The Tribunal finds that the heights of the piers are generally as
described by the respondent's expert and that all piers (16 - 26 inclusive) exceed the allowable 1.8 metres by at least 300 millimetres and, therefore, the piers and associated pier caps require planning approval.
Whether any non-complying piers should be allowed at a varied height
52 The central concern is the impact of the overheight piers on the
views from the neighbouring property at No 16 Munro Street. Before dealing with views, it is necessary to deal briefly with the issue of the impact of the overheight piers on the streetscape.
The respondent argued that:
Given the site's public prominence, its development is considered to have a significant impact on the surrounding streetscape and the amenity of the locality.
The over-height piers are considered to detract from the surrounding streetscape, as the piers are bulky and monolithic in nature and at odds with the existing fencing in the locality.
54 The Tribunal agrees that the site is prominent, noting that its
elevation well above road level adds to its prominence. It is also on a corner site and when that factor is combined with its elevation, the external boundary fencing is prominent on three sides of the dwelling. It is therefore curious and illogical that the respondent finds that the fencing extending from piers 1 - 15 has no adverse impact on streetscape, whereas the same fencing extending from piers 16 - 22 has an adverse impact. In fact, the fencing between piers 11 - 14 is far higher in relationship to the streetscape than piers 16 - 22. Given the scale of the premises, the prominence of the site and its elevated nature, the Tribunal finds that the additional 330 millimetres height (approximately) of piers 16 - 22 does not adversely impact on the streetscape of the locality.
55 The acceptability of the overheight piers in terms of the streetscape
does not necessarily mean they are acceptable in terms of their impact on
the amenity of the affected adjoining neighbour.56 The respondent argued that the excess height of the piers has a
negative impact on the views from the neighbouring property at
No 16 Munro Street:The dwelling at 16 Munro Street features a lounge room which has views across the front setback area of the subject property. These views are of the Swan River, the Indian Ocean and Rottnest Island. It is noted that the
[2010] WASAT 124
views are somewhat limited in extent and can be considered ocean and
river glimpses only.Despite the limited extent of the views, it is considered that they are significant views and thus significantly contribute to the amenity of 16 Munro Street. In particular, access to these views can be considered to be a permanent feature of 16 Munro Street as the views are over the neighbouring front setback area where development is generally not permitted…
[The] over-height piers are considered to detract from the amenity of 16 Munro Street as they limit ocean views. Significantly, the pier capping obscures the ocean horizon line and Rottnest Island as viewed from 16 Munro Street.
57 The evidence included a letter of objection to the respondent from
the affected adjoining neighbour, Ms Byrne. The letter of objection
included the following statements:When I stand in my lounge room I have a lovely view over Rocky Bay out to the horizon and Rottnest. I treasure this little outlook, and I am told that it makes my property more valuable. This view is now interrupted by brick pillars and a solid wall. I wanted a fence that I could see through across the corner of my neighbour's setback area, but they have structured their fence such that I see lots of brick and not much view. To top it off they have now put big square plinths on top of every pillar. Without the plinths I see the horizon and the Indian Ocean. With the plinths I see tiny glimpses in between built concrete.
58 The summary argument of the applicant is that the views are minor
glimpses that are not valued by the neighbour in view of the amount of vegetation on the neighbouring property that screens the views, and that the piers have minimal impact, if any, on the views. To support his argument, Mr Webb presented a detailed assessment of the proposal in the context of principles outlined in Tenacity Consulting
Pty Ltd v Warringah Council [2004] NSWLEC 140, at [26] - [29] (Tenacity).
59 Before considering the principles outlined in Tenacity, the Tribunal notes that the need for consideration to be given to the impact on neighbours' views is supported by the Views Policy and by several areas of TPS 3. In cl 4.2 of the Scheme, the objectives of the residential zone include the need to 'safeguard and enhance the amenity of residential areas' and the 'need to recognise the importance of design elements such as the "front yard" … to the character, amenity and historical development of the Town and to the community'.
[2010] WASAT 124
In cl 10.2 of TPS 3, matters to be considered by the Council in assessing an application include:
…
(j) the compatibility of a use or development with its setting … (o) the preservation of the amenity of the locality; and … (p) the relationship of the proposal to development on adjoining land … including but not limited to, the likely effect of the height, bulk, scale orientation and appearance of the proposal. …
In Pelliccione and Town of East Fremantle [2009] WASAT 143, at [55] the Tribunal stated:
Planning law and practice is concerned with preserving views to the extent that that could be said to be a 'reasonable' position. In APP Corporation Pty Ltd and City of Perth [2008] WASAT 291, the Tribunal cited with approval the following 'four-step assessment in relation to view sharing in a case where the planning framework required development to allow for the reasonable sharing of views'. The author was Senior Commissioner Roseth of the New South Wales Land and Environment Court writing in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, at [26] - [29].
The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (for example, of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, for example, a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from
[2010] WASAT 124
bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
In terms of the first test, Mr Webb argued that the views are only glimpses or partial views. Furthermore, he argued:
… the 'glimpses' are through foliage planted by the objecting neighbour on their property. Clearly, this vegetation suggests that these views are not important to the neighbour.
Then, he added:
The 'glimpses' will be reduced further with more comprehensive landscaping of the review site. This will only become more dense [sic] over time.
64 The Tribunal agrees that the views are partial. However, the views,
if not iconic, verge on iconic, providing a view not only of the river or ocean but a view of Rottnest Island over the ocean over land, over the river and over more land. In the setting of the Perth metropolitan area, a view that includes Rottnest Island, the ocean and the river should reasonably be considered a significant/iconic view, even if the view is partial.
65 With reference to the second test, Mr Webb argued that the views are
through the side boundaries and that, if the neighbour valued the views, they could remove the vegetation to provide access to views across their front boundary. The Tribunal does not agree: most of the views at right angles to the dwelling are across Munro Street and houses on the other side of the street, which limit or eliminate views. The view under contention, while across a common side boundary, is across the front
[2010] WASAT 124
yards of both properties and, furthermore, the most affected view is the
standing view, not a sitting view.66 The third step is to consider the extent of the impact. The applicant
argued that the views are only glimpses and they are limited to the living room; the views from the living room are restricted by a large pillar; and that, apart from a very narrow terrace adjoining the living room, there is no usable outside space to enjoy the views. Mr Webb concluded that, on the suggested scale associated with test 3, the extent of the loss of views is 'negligible'.
67 The Tribunal does not agree. In addition to views from the living
room, which are, by themselves, important to the neighbour, there are views from the bedroom and views from the external entry patio and the narrow external patio adjoining the living room. The partial views enjoyed by the neighbour are impacted by the piers, piers caps and a solid wall erected by the applicant. The major problem is that, in a standing position, the piers caps line up approximately with the ocean and Rottnest Island views. Furthermore, the piers and piers caps of the front wall (piers 16 - 21) are not aligned with the piers on the side wall (piers 22 - 25) and, when viewed from the neighbour's property, they form a partial wall. This problem is accentuated by the internal pier (pier 26). For example, the gap between pier 23 and pier 24 on the side wall, rather than providing a clear opening to the view, is partially filled by the internal pier 26 and at least one of the front piers. Based on the evidence and the site viewing, the Tribunal finds that the impact of the loss of view is moderate to severe.
68 The final step is to assess the reasonableness of the proposal that is
causing the impact. Mr Webb argued that redevelopment of a new dwelling on the site has inevitably resulted in a loss of views that were previously enjoyed by neighbours when the site was undeveloped. He stated:
The applicant has developed within what they are reasonably entitled to do pursuant to the Scheme and the Codes.
69 Furthermore, with specific reference to the fence, Mr Webb argued
the applicant's proposal to develop a substantial fence around their
property is not inconsistent with similar structures in the locality.70 The photographic evidence supports Mr Webb's argument that there
are other substantial fences in the locality. However, the question is not whether the applicant is entitled to a substantial fence but whether more
[2010] WASAT 124
skilful design could reduce the impact of the fence on the neighbour's views. The Tribunal has already found that the piers are overheight and not consistent with the policy, thus placing more weight on the need for skilful design that provides the applicant with the same amenity but with less impact on the views of the neighbours. For example, both the size of the piers (shown as 405 millimetres by 405 millimetres) and especially the pier caps (680 millimetres by 680 millimetres) may be unnecessarily large, and even unnecessary, on the side fence. The gate provides a logical break point for a transition to a fence without pier caps. The solid wall between pier 22 and pier 23 contains the service meters, but at the design stage, in the context of impact on neighbours' views, consideration should have been given to the relocation of these meters on a site with over 50 metres of street frontage. In the unlikely event that the chosen location was the only possible location, more skilful design should have been able to reduce the impact by lowering the height of the wall.
Similarly, an awareness of the impact on the neighbours' views should have called into question the need for pier 26 and possibly pier 21. Pier 26, and especially its cap, is a significant problem. It is offset against the side boundary piers and the front boundary piers. Depending on the viewpoint, it will often visually adjoin one or more of the front or side boundary piers to form a partial wall.
72 In summary, by applying the four step analysis to the facts in this
case, the Tribunal rates the loss of these partial but significant views as moderate to severe. There are non-complying elements of the fence, such as overheight piers and an overheight section of wall between pier 22 and pier 23. Also, there is an internal fence and pier (pier 26) that may be unnecessary and, for reasons described above, has a substantial negative impact on the neighbours' views.
73 As found in the cases cited above, where an impact on views arises
as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. That reason alone is sufficient for the Tribunal to determine not to approve the overheight piers. It is also clear that a more skilful design could have been applied to the fence that would have reduced the impact on the neighbours' amenity. In these circumstances, the loss of views can therefore be considered as 'unacceptable'.
74 The Tribunal finds that all the overheight piers contribute in varying
degrees to the loss of amenity. The parties have not submitted arguments
[2010] WASAT 124
on possible alternative conditions to lowering the height of all piers
16 - 26.
Therefore, the Tribunal finds that none of the overheight piers should be allowed at the varied height.
Whether any encroachment across the boundary of any fence pier, particularly the capping, should be allowed
76 It has been established earlier in these reasons that planning approval
is required for the boundary fence because it exceeds 1.8 metres in height. The required approval is not limited to the contentious piers 16 - 26, but is required for the entire fence. The Council has approved the fence subject to two conditions, one of which involves possible encroachment of part of the fence onto adjoining properties.
77 There are three properties involved. The fence between piers 1 - 6
adjoins No 27 Locke Street. The fence between piers 6 - 22 adjoins the
verge, and the fence between piers 22 - 25 adjoins No 16 Munro Street.78 The extent of encroachment is not clear in the written submissions.
The applicant, when making arguments relating to the fence adjoining No 16 Munro Street, stated that the fence and the piers are built entirely within the applicant's property, and that only the pier caps extended outside the applicant's property and that the encroachment is approximately 70 millimetres. An examination of the survey drawings, prepared by Mr Bush, indicates that it is likely that all piers are similar to piers 22 - 25 and that the encroachment is limited to the pier caps.
The respondent, in its written submissions, stated that it had no objections to any encroachments into the verge.
80 The written submissions include a letter of objection from the
adjoining neighbour at No 27 Locke Street. Although the issue of height relating to this neighbour was resolved by mediation, there is reason to believe the matter of encroachment has not been resolved.
81 The arguments submitted by the parties specifically relate to the piers
encroaching into No 16 Munro Street. However, without considering the arguments in detail, there is a fundamental issue of whether the Tribunal can determine this matter.
82 The respondent argues that, because part of the fence is in the
neighbouring properties, both adjoining neighbours were required to sign the development application form. The neighbours have not signed the
[2010] WASAT 124
form and both have objected to the fence. The respondent argues correctly that, because the neighbours are not part of the planning application, the part of the fence that encroaches into the neighbouring properties cannot be dealt with under the planning framework.
83 The Tribunal agrees. There is no valid planning application for the
part of the development on the adjoining properties (encroachments). The respondent is correct in arguing that it cannot approve the encroachments without a valid planning application and, hence, the Tribunal finds that none of the encroachment across the boundary of any fence pier, particularly the capping, should be allowed.
This finding is consistent with the finding of Murray J in Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71 WASC. This finding of the Tribunal does not prevent the respondent following a process to approve the encroachments into the verge, in accordance with intentions expressed in the respondent's evidence.
Conclusion
85 This matter involved a dispute over the height and encroachments of
a front fence which included 26 piers and pier caps. By consent of the parties, the dispute on the height condition was limited to the fence from piers 16 - 26 inclusive, and the dispute on encroachments was limited to neighbouring private properties and excluded encroachment into the front verge.
Therefore, the issues to be resolved were:
1) Whether any of the fence piers 16 - 26 including capping, comply with height requirements. 2) Whether any non-complying piers should be allowed at a varied height. 3) Whether any encroachment across the boundary of any fence pier, particularly the capping, should be allowed.
87 On the issue of encroachments, the Tribunal found that, in the
absence of a signed development application from the adjoining landowners and in the context of objections from both adjoining landowners, the Tribunal was unable to approve the encroachments.
88 On the issue of compliance with height, the Tribunal first had to
determine the correct method for measurement of height. The Tribunal
[2010] WASAT 124
found that, in the context of the planning framework, including a fencing policy, the height was to be measured from finished ground level, and that finished ground level did not include the height of retained garden beds built next to the fence by the applicant. It followed that all piers 16 - 26 did not comply with height requirements.
89 The Tribunal then 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.'
Therefore the Tribunal found that none of the overheight piers should be allowed at the varied height.
It followed that the application for review should be dismissed and the decision of the respondent affirmed.
| Orders |
The Tribunal makes the following orders:
1. The application for review is dismissed. 2. 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 is affirmed, with condition 1 modified as follows: The fence piers 16 - 26 inclusive are to be reduced to a height of 1.8 metres within 60 days.
[2010] WASAT 124
Attachment A
[2010] WASAT 124
I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER
2
3
3