CHRISTIE and TOWN OF EAST FREMANTLE - [2006] WASAT 270

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CHRISTIE and TOWN OF EAST FREMANTLE [2006] WASAT 270

MEMBER: JUDGE J CHANEY (ACTING PRESIDENT)

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 6 SEPTEMBER 2006

FILE NO/S: DR 226 of 2006

BETWEEN: PETER CHRISTIE
Applicant
AND
TOWN OF EAST FREMANTLE
Respondent

Catchwords:

Town planning Application for review by President of decision of non legally qualified member Scope of review Requirement to identify error of law No errors of law identified

Legislation:

Planning and Development Act 2005 (WA), s 238, s 238(1), s 239, s 244, s 244(1), s 244(3), s 244(4)
Residential Design Codes of Western Australia 2002, cl 2.6.1, cl 2.6.2
State Administrative Tribunal Act 2005 (WA), s 9, s 87(1), s 131
Town of East Fremantle Town Planning Scheme No 3, cl 2.2, cl 5.2.2

Town Planning and Development Act 1928 (WA), s 54B(2), s 66

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: N/A
Respondent: N/A

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods

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

Allsure Pty Ltd and Western Australian Planning Commission [2006] WASAT 145
Fencott & Ors v Muller & Anor (1983) 152 CLR 570
Hicks v City of Melville (1994) 11 SR (WA) 280
Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77
Lawson & Anor and Shire of Mundaring [2005] WASAT 1
Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR(WA) 296
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199
Vickers v Director of Planning (1968) 16 LGRA 92

Case(s) also cited:

Archetype Design Studios and Town of Claremont [2006] WASAT 181
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Jetcove Pty Ltd v City of Melville [2003] WATPAT 89
Newman and Town of Cottesloe [2005] WASAT 154
Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165
Williams and Western Australian Planning Commission [2005] WASAT 10
Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

Pursuant to s 244(3) of the Planning and Development Act 2005 (WA), the applicant sought review of a decision by a non‑legally qualified member of the Tribunal. The member had dismissed an appeal against the Town of East Fremantle's decision to refuse approval to develop a house on the corner of Munro Street and Locke Crescent in East Fremantle.
The right of review under s 244(3) is only in relation to determinations or orders upon a question of law. The Acting President of the Tribunal examined the nature and extent of the review power and the grounds upon which the applicant sought review. He concluded that no error of law had been identified, and that the application should be dismissed.

Introduction

The applicant seeks a review, under s 244(3) of the Planning and Development Act 2005 (WA) (the PD Act), of a decision by Member Ms M Connor reported as Christie and Town of East Fremantle [2006] WASAT 150. Ms Connor is not a legally qualified member, and thus s 244(1) of the PD Act enables the Tribunal, constituted by the President, upon application by a party, to "review a direction, determination or order upon a matter involving a question of law". In the absence of the President on leave, I am acting as President pursuant to s 131 of the State Administrative Tribunal Act 2005 (WA).
Ms Connor's decision followed a review of the decision of the Town of East Fremantle to refuse planning approval for a two‑storey residence with an undercroft garage at No 18 Munro Street, East Fremantle. The proposed development is on land at the intersection of Munro Street and Locke Crescent.
Member Connor identified the principal issues as:
"1.Whether Category 'B' of Element 3.7 of the Residential Design Codes of Western Australia 2002 or the Local Planning Policy 142 should be used to determine the height standards for the particular lot.
2.Whether the proposed development is:
(a)excessive in height; and
(b)has an unacceptable impact on streetscape and amenity by reason of its bulk and scale.
3.Whether the design of the north east boundary wall and the adjacent outdoor living area and pool is acceptable."
The Tribunal determined that, as the locality was one where views were an important part of the amenity, the alternative height standards as specified in Local Planning Policy 142 (LPP 142) were the appropriate starting point from which to assess building height.
Ms Connor was not satisfied that the form of the development met the objectives of the "residential" zone of the Town of East Fremantle Town Planning Scheme No 3 (LPS 3) or accorded with the principles of orderly and proper planning for the locality. Furthermore, the Tribunal was not satisfied that the treatment of the northern portion of the site relating to pool and terrace areas was in keeping with the objectives of the Residential Design Codes of Western Australia 2002 (the Codes) and was of the view that the proposed retaining walls would detrimentally affect the streetscape, visual amenity and character of Locke Crescent, and would have an adverse impact on the amenity of the adjoining property. The Tribunal dismissed the application for review. Full details of the proposed development are set out in Member Connor's reasons for decision.

The scope of the review

As observed, a precondition to the jurisdiction of the President to review a determination of a member of the Tribunal who is not a "legally qualified member" is that the determination must have been made upon a matter involving a question of law – PD Act s 244(1) as explained in Lawson & Anor and Shire of Mundaring [2005] WASAT 1 at [7] and [8]. In this review, the applicant asserts a number of errors on the part of the Tribunal. The respondent contends that at least some of the complaints made by the applicant do not involve questions of law. In reply the applicant contends that, so long as some error of law is identified, then the whole of the Tribunal's decision is then open to review regardless of whether other errors identified involve questions of law. In view of those submissions, it is necessary to examine the scope of this review.
Section 244(1) of the PD Act provides:
"(1) The State Administrative Tribunal constituted by the President may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a matter involving a question of law that was made by the State Administrative Tribunal when constituted without a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004."
Section 244(3) and (4) provide:
"(3)An application for a review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations and rules made under the State Administrative Tribunal Act 2004, by a party within one month after the direction, determination or order is given to the party.
(4)The President is not to review a direction, determination or order upon a matter involving a question of law if the President has given an opinion on that question of law."
It can be seen that the section repeatedly makes reference to "determination or order upon a matter involving a question of law".
"Matter" is not used in s 244 in the sense in which it is used in the Commonwealth constitution namely the whole judiciable controversy between the parties (for example, Fencott & Ors v Muller& Anor (1983) 152 CLR 570 at 608). Every application for review of a planning decision involves some question of law, or at least mixed law and fact; for example, a determination as to whether, and which, provisions of a local planning scheme apply to a particular development. Frequently, of course, there may be no issue between the parties in relation to questions of law, but it might still be said that resolution of the controversy between the parties necessarily involves the application of statutory provisions and legal principle. It is not suggested by the parties in these proceedings that the mere fact that a non‑legally qualified member applies law to reach a decision is sufficient to trigger an entitlement to review by the President under s 244. What s 244 is directed to is a direction, determination or order "upon a matter involving a question of law". The reference to a "matter" is a reference to "an issue between the parties in the review". It is the direction, determination or order upon that issue which is reviewable by the President. The enquiry by the President is as to whether the non‑legally qualified member has made an error in relation to the question of law involved. In the absence of an error in relation to the question of law, an application for review under s 244 must fail.
So much seems common ground between the parties.
The parties disagree, however, as to the scope of the review if an error of law is identified. In view of my conclusions in relation to Ms Connor's decision, it is not strictly necessary for me to resolve that issue. But because the parties' submissions dealt with this issue in some detail, it may be helpful to make some observations on the point.
The applicant relies upon observations of Barker J in Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77 at [6]. His Honour, relying on Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148 at 151 and Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199 [12] – [15], noted that "if a decision does involve a question of law, and the Tribunal has made an error of law in coming to the decision, the whole of the decision and not merely the question of law is open to review". Both the Ingram and Temwood decisions involved consideration of the proper construction of the now repealed s 54B(2) of the Town Planning and Development Act 1928 (WA) (the TPD Act). That subsection provided:
"(2)An appeal does not lie to the Supreme Court from a direction, determination, or order of the Tribunal unless the appeal involves a question of law."
There is a significant distinction between s 244(1) of the PD Act and s 54B(2) of the TPD Act. The latter precluded appeals unless they involved a question of law. The former permits the President to review a determination upon an issue between the parties on a question of law. If, on that review, the President finds an error of law to have been made, the decision as to whether the President should affirm the decision or revoke it and substitute another decision, must be made having regard to the consequences which flow from the error on the question of law. It may be that the error is such that it affects the reliability of other findings made by the member, in which case those findings will require examination. The section does not, however, contemplate that all factual findings, or discretionary decisions, by the member will be susceptible to review simply because some completely unrelated, and possibly inconsequential, error of law is discovered.
The PD Act is designed to encourage a proportionate response to applications for planning reviews. Section 238 requires the Tribunal to be constituted by an ordinary member sitting alone when dealing with certain specified types of applications. Section 239 provides for an election against legal representation in certain circumstances. Section 238(1) identifies the qualifications of members constituting the State Administrative Tribunal for the purpose of dealing with applications under the PD Act. Section 244 should not be construed as providing for a review of decisions of non‑legally qualified members of the Tribunal other than in relation to their determinations upon issues of law, except where those determinations are coloured by an error of law.
It is with that approach to the matter that I will now address the grounds upon which the applicant contends the Tribunal erred.

The application of Local Planning Policy 142

Clause 5.2.2 of LPS 3 provides 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 is to conform to the provisions of those Codes". As Member Connor observed, LPS 3 (cl 2.2) and the Codes (clauses 2.6.1 and 2.6.2) provide for the formulation and adoption of local planning policies to address local requirements for building height. The respondent has adopted LPP 142 which sets out alternative standards to those found in the Codes. The policy has the general intention that buildings retain the predominant bulk and scale of the locality/precinct. The policy provides that:
"Category 'B' provisions as set out within Table 3 – Maximum Building Heights of the Residential Design Codes are applicable as 'acceptable development' standards, except in localities where views are an important part of the amenity of the area then the maximum building height [sic] are as follows:
‑ 8.1 m to the top of the pitched roof;
‑ 5.6 m to the top of the external wall; and
‑ 6.5 m to the top of an external wall (concealed roof)."
Member Connor accepted that the standards specified by LPP 142 were applicable to the proposed development. She did that on the basis (at [32]) that "the evidence clearly demonstrated, and Mr Caddy agreed, that the subject locality is one where views are an important part of the amenity". The applicant asserts that the Tribunal was in error in applying LPP 142 without first defining the locality to which the alternative heights set out in LPP 142 were to apply.
The enquiry as to the appropriate "locality" for the purpose of assessing amenity has been explained by the former Town Planning Appeal Tribunal on a number of occasions ‑ Hicks v City of Melville (1994) 11 SR (WA) 280 and Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR(WA) 296. In each of those cases, the Tribunal adopted the definition found in Vickers v Director of Planning (1968) 16 LGRA 92 at 103, namely:
" the urban locality … is one to which the land, the subject of the appeal is related and of which it forms part.
The concept of locality is flexible and is not confined by establishing a quadrilateral bounded by four streets. It requires a separate determination in each case to be able to ascribe the weight to be given to the evidence of experts or residents in relation to the area."
Mr Caddy, the planner who gave evidence on behalf of the applicant, said in his witness statement that "the applicants contend that in this case [LPP 142] has no application, because the proposed development will have no greater adverse impact on adjoining residence than a development that complies with the policy". Earlier in his witness statement, he acknowledged the respondent's contention that "Preston Point is a locality where views are an important part of the amenity of the locality, and therefore the policy applies". He asserts, however, that the policy does not apply because "it is only those residents whose houses are further up Locke Crescent (further south) whose view could possibly be affected by the proposal". In cross-examination, Mr Caddy accepted that "this locality is one where views are an important part of the amenity". He agreed that, for that reason, LPP 142 applies to the proposed development. Further cross‑examination revealed that his position was that the policy did apply in this locality, but its requirement should be varied because of the limited impact on the views of adjoining properties.
Mr Peter Webb, a planner called by the respondent, said in evidence that in his view, "it is beyond doubt that Preston Point is a locality where views are an important part of the amenity of the locality. In particular, in the more narrowly defined area around the subject land at Locke Crescent and Munro Street, views are, in my opinion, a significant part of the amenity of the area".
Mr Peter Le May, the Chairman of the respondent's planning and building committee, gave a description, under the heading the "the locality", of the "Preston Point area and the streets bounding and within it". The transcript reveals that Mr Le May was cross‑examined at some length by counsel for the applicant, but that cross‑examination focussed upon the impact of the development on the views of nearby properties. It is apparent, as the respondent submits, that the applicant did not seek to argue that views are not an important aspect of the amenity of the locality, but rather that the requirements of the policy should not be applied in this case given the minimal impact on the views of adjoining properties.
This is not a case in which failure to include in the reasons for decision a definition of the "locality" can be said to be an error. There was simply no issue as to whether or not views are an important part of the amenity of the area within which the proposed development is located. That area, or locality, had been generally referred to as the Preston Point area, but its precise boundaries were not material to the decision.
In my view, the proposition that LPP 142 applied to the proposed development was clear, as Member Connor determined. The question of whether its requirements should be varied was a matter which fell within the discretionary decision which the member was called upon to make in light of the evidence before her.

The inflexible application of policy

Initially, the applicant argued that, having determined that LPP 142 applied, the member then applied that policy inflexibly, and was thus in error. In light of the respondent's submissions on that point, the applicant abandoned that contention, and it is not necessary for me to deal further with it.

Inconsistent findings regarding height, bulk and scale in relation to the house

The applicant contends that, on the basis of its own reasoning, the Tribunal erred in refusing the application. The reasoning relied upon is the Tribunal's finding that:
(a)the property is a landmark site and is "highly visible due to the topography and road layout [13]; and
(b)it would be possible, given the location and topography of the site, to have a development which is greater in height than set out in LPP 142 [43].
It is argued that, because the setbacks of the house comply with the requirements of the Codes, the articulation of the building was not in question, and there was no evidence that the neighbours found the development visually imposing, the reasoning of the Tribunal should have led to its approving its development application.
Member Connor explained her reason for her contrary conclusion. At [43] she said:
" … The Tribunal is also cognisant that the topography of the subject land will accentuate the height of any development as viewed from Locke Crescent north of the site. However, any variation should not adversely affect the adjoining property (Lot 5048) or result in a negative visual relationship between the public realm and the subject land. The extent of the variations sought, particularly in relation to the northern quadrant of the building, are substantial. The fall of the land, and the treatment proposed in relation to the outdoor area, combine to emphasise the bulk and scale of the proposed building as viewed from the surrounds. The interrelationship of the northern quadrant of the building with the outdoor area and the interface of the development with Locke Crescent are integral in establishing the effect of the scale of the development on the streetscape and surrounds. There is no doubt that the proposed development, in its current form, in terms of height, scale and bulk will be visually imposing and unsympathetic with its surrounds and thereby detrimentally affect the streetscape, visual amenity and character of Locke Crescent. The Tribunal is not satisfied that the present form of the development meets the objectives of the 'Residential' zone of TPS 3 or accords with the principles of orderly and proper planning for this locality."

The view taken by the member was clearly open to her on the evidence, and was not inconsistent with the observations she had made. No error, and certainly no error of law, has been demonstrated in relation to this contention.

Failure to consider transitional nature of building stock

The applicant contends that there was evidence given at the hearing that the area was in a state of transition, and that the Tribunal erred in not taking that evidence into account in determining that the bulk of the proposed development would detrimentally affect the character of Locke Crescent. At [41] Member Connor referred to Mr Caddy's evidence that "he considered the locality to be in a transitional period as many of the existing dwellings in the area were ready for redevelopment". It was in that context that she observed, at [43] that the land "may be capable of supporting a development that is outside the height parameters set by LPP 142". There is no reason to conclude that the member did not have regard to the evidence of Mr Caddy concerning the transitional nature in reaching her conclusion.

Failure to deal with the application in two parts

The applicant asserts that, at the hearing of the matter, he requested through his counsel that the proposal be dealt with in two parts being, first, the house itself, and, second, the outdoor area and pool. It was the latter component of the development which led to the refusal of the application by the Tribunal. It is contended that the Tribunal made an error of law in declining to separate the application into two separate components, the error being a failure to adhere to the objectives of the Tribunal specified in s 9 of the State Administrative Tribunal Act 2005 (WA) (the SAT Act). That section provides that:
"The main objectives of the Tribunal in dealing with matters within its jurisdiction are ¾
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; …"
The respondent contends that it would not have been open to the Tribunal to deal with the application in two parts. That is because, it contends, the design of the house and the outdoor area are reliant upon each other, and depend upon each other for functionality. It argues that, given that the application was for approval of the development as a whole, the Tribunal could not, as a matter of law, approve only part of it as that would be to approve something completely different in character from what is proposed – see Allsure Pty Ltd and Western Australian Planning Commission [2006] WASAT 145 at [12] ‑ [15].
It is not necessary to determine whether it would have been open to the Tribunal to consider the application in two parts, although there appears to be considerable force in the respondent's contention.
The question of dealing with the application in two parts appears to have arisen in the applicant's closing submissions. The written submissions, which were repeated orally, were as follows:
"13. Splitting of application
13.1If the Tribunal was so minded to approve one component of the application and not the other, then the Applicants respectfully request that the Tribunal make orders to allow that component of the development with which the Tribunal is satisfied.
13.2As an example, if the Tribunal were to approve:
13.2.1the dwelling, but not the fill; or
13.2.2the dwelling, but 'subject to the reduction of the turret roof to x metres'.
13.3Such an outcome would assist the Applicants in pursuing those parts of the development which are acceptable to the Tribunal, and provide some context for the amendment, and reapplication for those areas that the Tribunal did not find acceptable."
The objective identified in splitting the application was to provide some assistance to the applicant in any further applications necessary to deal with unacceptable portions of the development. Member Connor's reasons were quite clear about the aspects of the development which the Tribunal considered unacceptable. The objective underlying the request to "split the application" is adequately met by the reasons.
The proposal to approve part of the development was opposed by counsel for the respondent in his closing submissions. The approach taken by the member was entirely appropriate given the potential difficulties in approving only part of the application with consequent uncertainty as to whether or not that part which was approved was capable of development. Even if my view were different about the decision taken by the member, I have grave doubts that a procedural decision of that nature could be said to be an error of law as running contrary to the broad general objectives specified in s 9 of the SAT Act. In the circumstances, however, it is not necessary to explore that matter further.

Conclusion

The applicant has failed to demonstrate any error of law on the part of Member Connor, and the application for review of her decision should be dismissed.

Costs

The respondent submits that the Tribunal should depart from its usual practice in relation to costs, and order that the applicant pay the respondent's costs of the proceedings under s 244. It makes that submission based on the contention that the applicant's grounds of appeal are fundamentally flawed and were doomed to failure, were in some respects inconsistent with both the evidence and findings of the Tribunal, and placed reliance on a decision made by the Council more than three months after conclusion of the hearing (in relation to an approval of a different development in the locality).
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [57] the President of the Tribunal referred to the potential for argument that the general rule that each party should bear its own costs might attract different considerations where a review under s 66 of the TPD Act (now s 244 of the PD Act) is dealt with. Having raised the issue, the President expressed the view that "ordinarily section 87(1) of the SAT Act applies to such a proceeding and, accordingly, costs should not be awarded against the party that is unsuccessful on this type of review proceeding".
Although I have found that the grounds upon which the applicant sought review in this matter are not made out, the circumstances are not such that the general rule should be departed from. Although I have rejected the applicant's contentions, I would not categorise them as "fundamentally flawed". There should be no order for costs.

Orders

1.The application for review under s 244 of the Planning and Development Act 2005 (WA) is dismissed.
2.There is no order as to costs.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, ACTING PRESIDENT