CLIFFORD and CITY OF STIRLING - [2009] WASAT 208

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CLIFFORD and CITY OF STIRLING [2009] WASAT 208

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 28 JULY 2009

DELIVERED : 23 OCTOBER 2009

FILE NO/S: DR 186 of 2009

BETWEEN: CLIVE CLIFFORD
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Development application - Application of policy - Amenity - Residential Design Codes of Western Australia (2008)

Legislation:

City of Stirling District Planning Scheme No 2, cl 1.3.5(f), cl 1.3.5(f)(xiv)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.4, cl 6.4.1, cl 6.4.2, Appendix 1

Result:

The application for review is dismissed and the decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr D Spencer (Representative)

Solicitors:

Applicant: Self-represented
Respondent: City of Stirling

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

Goodhew v Morton [1962] 2 All ER 771
Sunbay Development Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd and Shire of Kalamunda (1994) 10 SR (WA) 96
Webb v Epstein [1956] ALR 154

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This review sought to approve the unauthorised extension and enclosure of a timber framed pergola to the rear of a property in the City of Stirling.
Having considered all of the parties' submissions and evidence the Tribunal refused the application principally on the basis that the unauthorised portion of the development clearly impacted on the amenity of the locality.

Background

These proceedings involve an application brought by Mr Clive Clifford (applicant) under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of the decision of the City of Stirling (respondent, City or Council) to refuse a development approval under the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme) for the extension and enclosure of a patio, and a pergola at No 185A (Lot 426) Northstead Street, Scarborough (site).
The site is zoned:
a)'Low Density Residential R30' under DPS 2; and
b)'Urban' under the Metropolitan Region Scheme.
On 24 February 2003, the applicant received a building licence from the City for the construction of an addition of a patio and pergola to the dwelling. There were nine conditions attached to that building licence, the relevant ones for the purposes of these proceedings, being Condition 2 and Condition 9 which stated:
•Condition 2 - Patio and pergola not to be enclosed.
•Condition 9 - comply with conditions marked in red on the approved plans.
The relevant markings in red on the approved plans were that any building work was to be set back 2 metres from the rear boundary and 450 millimetres from each of the side boundaries.
The site in question has an area of 346.7 square metres and accommodates a two storey dwelling with a double garage at the front, and the patio and pergola referred to above to the rear.
The vehicular access is from Northstead Street with an unconstructed right of way located to the rear. That right of way is classified as a 'Category 2' right of way in the Council's Policy N101301 titled 'Developments Abutting Rights of Away' (ROW Policy).
Shortly after receiving the building licence in February 2003, the patio and pergola were erected. However, following a site inspection conducted by the City of Stirling on 30 August 2006, a letter dated 14 September 2006 was written to the applicant stating in part:
I refer to an inspection conducted by the City of Stirling Compliance Officer, Mr Adrian Snape on 30 August 2006 and a subsequent investigation into the above matter.
During the site inspection Mr Snape noted that there is an enclosed patio and pergola, which had been built to the boundary on three elevations at the rear of the property.
A search of City records revealed that a previous building licence approval for the patio and pergola included the conditions that the set backs at the site boundaries were to be 450 millimetres and the rear boundary set back to be 2 metres (marked in red). It appears that the patio/pergola have been constructed in a manner that deviates from the approved plans.
Further correspondence passed between the parties which led to the applicant submitting an application for retrospective planning approval to the City.
That application was dated 19 January 2009 and described the development for which permission was sought as
Timber framed pergola with combination of lattice panels and a shade cloth covering to rear as attached.
Plans attached to that application showed the patio and pergola as constructed.
Following consideration of the matter, the City resolved to refuse the application and by Notice dated 9 March 2009, stated its reasons for refusal as:
1.The proposal does not comply with clause 6.3.2 (buildings on boundary), clause 6.4.1 (open space provision) and clause 6.4.2 (outdoor living areas) of the Residential Design Codes of Western Australia.
2.The applicant to remove the unauthorised structures within 30 days of the date of this refusal letter.
3.The proposal has a significant adverse effect on the amenity of the subject lot and on adjoining lots.
On 8 May 2009, the applicant filed an application to review the City's decision which application was heard on 28 July 2009.

Submissions

Respondent's submissions

Mr D Spencer, a senior planning officer in the compliance department at the City gave evidence on behalf of the respondent.
In his opinion, the extension of the patio and pergola is a highly visible structure from the right of way and from nearby properties.
He stated the pergola extended to within 250 millimetres of the rear boundary where the required set back is 2 metres and to within 250 millimetres of the side boundaries where the required set back is 450 millimetres.
In Mr Spencer's opinion, the development is highly visible and has significant adverse impact on the amenity of the subject lot and adjoining lots due to its height, scale and appearance.
He explained that the walls of the structure were enclosed with lattice covered by shade cloth while the patio had a solid roof and the pergola was roofed by shade cloth over timber batons.
He submitted that condition 2 of the building licence clearly stated that the patio and pergola were not to be enclosed in his opinion they were enclosed due to being entirely covered by shade cloth.
He also submitted that the City had a clear policy in respect of developments abutting rights of way which stated that buildings be set back 2 metres which was clearly breached in this instance.
Mr Spencer acknowledged that there are discretions for the City to allow buildings on the boundary but he could not think of any examples where they had allowed this.
The primary question for Mr Spencer was one of amenity. He submitted that the development is visually prominent and intrusive and has an adverse impact on the amenity of the adjoining properties and the local streetscape.

Applicant's submissions

Mr Clifford, the applicant, appeared on his own behalf and confirmed that he was an architect although he was not involved in residential architecture.
He explained the position had come about by stating:
When we had the approval, we had the carpenter in tow ...
We gave them the building approval drawings and we had gone away for a long weekend; in fact, it was Easter in 2003. When we returned, they had set up all the structural frame. Now, we did acknowledge the rear setback, in that the original application indicated that the pergola was square off the back boundary, projecting up to 3.8 metres. We saw that was probably not a good solution and we cut it back to the 45 [degrees], as constructed now. However, all the posts were put in place along the side boundary and when we questioned the carpenter, especially on the strata side, which is 185B, he said previously he has undertaken similar things and strata boundary setbacks were not treated the same as green lot setbacks and I had already a written agreement from both owners. If I had not had those, I would have probably been more dogmatic and told him to pull it down and start again and I did not see that that 250 millimetre difference in the materials we're using, being non-combustible and not a fire hazard - we discussed it with the adjoining owners and they had already signed it. So we just continued on; in hind sight, probably not the right thing to do and being an architect, I would not normally do that.
He also agreed that the building licence had the specific amendments to the plan in red.
In support of his application to the Tribunal, the applicant filed a number of documents including responses to all of the respondent's matters raised in their statement of issues, facts and contentions, detailed plans and a number of photographs.
Amongst other things, the applicant stated:
a)It is acknowledged the section of the raking pergola extends within the rear 2.0 metres setback, however, it is not part of the primary structural frame and does not have a negative impact on the amenity of the ROW or adjacent properties when compared to the substantial number of uncontrolled shrubs and trees within the same 2.0 metre setback zone or on the boundary line as indicated by Photographs ...
b)It is acknowledged that the patio and pergola extend within the 450 millimetre setback line designated under building licence to 250 millimetres, however, the BCA requirements for the southern boundary are not considered to be applicable on a Strata Lot boundary and irrespective of this acceptance was received from the adjoining lot owners ... and this difference of 200 mm is considered to have no greater impact on visual appearance.
c)With respect to the statement '... the structures do not comply with the pertinent provisions of the Residential Design Codes relating to open space, lighting and ventilation, outdoor living areas ...' it is totally refuted as the patio and pergola areas afford protection throughout the year irrespective of the prevailing winds or the temperatures of such an exposed westerly side relatively close to the ocean with a high aspect.
d)The construction of the patio is considered to be compliant and whilst the pergola structure is within the setback as defined by the respondent, it is also considered not to have any adverse affect on the amenity of the adjoining lots or the users of the right of way ...
In respect of the issue of the patio and pergola not to be enclosed, the applicant stated:
I still contest what the definition of enclosure is. I have agreed an enclosure could be from solid impervious metal to chicken netting or chicken wire. It depends on what the word enclosure is supposed to mean.
When asked by the Tribunal:
'... so what you are saying is what you have built is not enclosed?'
The applicant replied:
No, I'm not saying that. I am saying it's enclosed for security and protection.
The Tribunal pointed out that the condition stated that it was not to be enclosed, the applicant replied:
Yes. What's the definition of enclosed? There is no definition of enclosed. I don't consider it enclosed as the city may be alluding to ...
In closing, the applicant stated:
... we reject all of the city's statements and consider that Scarborough does not have any typical structural or heritage issues and this has no adverse effect on the right of way, compared with other two-storey buildings which are sitting on the two metre line and probably going up to five or six metres high. It's accepted by both adjoining owners and with the adjoining owner at 183B now constructing a screen wall, which is considered inappropriate from our side visually - and the pergola does not impact on their side, because it's of similar height and length, and all the aspects with the amenity of the subject lot, which is in dispute, we totally disagree ...

Adjoining owners' consent

The consent of the adjoining owners referred to by the applicant was contained in letters dated 20 December 2002, signed by the owners on either side of the applicant's property.
However, that letter explained that the planned structures on the boundary were to be 450 millimetres off the side boundaries.
This is what Council actually approved and imposed as a specific condition marked in red.
However, what was built by the applicant was not the 450 millimetres consented to and approved by Council but the structure was built 250 millimetres from the side boundaries.
In the circumstances, the adjoining owners' consent cannot be relied upon to confirm their agreement to a structure being erected 250 millimetres from the side boundary.

What was sought from Council and what is before the Tribunal on review

As outlined earlier, the application to Council dated 19 January 2009 sought approval for a:
Timber framed pergola with combination lattice panels and shade cloth covering to rear as attached.
The City's refusal dated 9 March 2009 refusing the retrospective application described it as:
Addition to Dwelling - Extension and Enclosure of Patio and Pergola (unauthorised works).
The decision sought by the applicant in his application to the Tribunal dated 8 May 2009 was to:
allow the existing construction of the pergola to remain without requiring modifications.
At the conclusion of the hearing on 28 July 2009, this matter was raised with the parties and after some discussion it was clarified and agreed that the approval which the applicant sought from Council related only to the unauthorised works; that is, the works that were done contrary to the building licence of 24 February 2003.
Mr Spencer clarified the City's position as being:
... the reason being that there were conditions stating for it not to be enclosed. I was considering the enclosed nature of it and those reduced setbacks to side and the rear, correct, because he already had a building licence and I - we're going back to the licence building, but he already had the building licence for a patio and pergola. We're not re-approving both those structures.
The applicant confirmed that his intention was for:
Approval for the reduced setbacks to the pergola on the side boundaries and the rear boundary in that - the 45 degree shape ...
The Tribunal is satisfied that what is before it to decide is whether retrospective planning approval should be granted to what are alleged unauthorised works outside the scope of the building licence, namely the alleged enclosure of the patio and pergola (condition 2 of the building licence) and the erection of the structure within the setbacks marked in red on the plans approved for the building licence of 24 February 2003, more particularly building within the 450 millimetre setback required of to the side boundary and within the 2 metre setback required to the rear boundary (condition 9 of the building licence).

Consideration

On the morning of the hearing and in the presence of the parties, the Tribunal attended the site and viewed the patio and pergola both from inside and out. At the invitation of the parties, the adjoining right of way was also viewed as well as other rights of way in the locality.
It is not in issue that the structure approved by the building licence of 23 February 2003 has been built closer to the side boundaries than the 450 millimetres allowed and although there is some dispute as to the extent of what has been erected in the rear 2 metre setback, it is accepted that some building has occurred within that area also.
There is a real difference however as to whether the patio and the pergola are enclosed. Although when it was put to him, the applicant did accept that while it was enclosed for security and protection, he didn't consider it enclosed as the City may be alluding to in a solid walling sense.
The City's argument in this regard came down to the fact that as far as it was concerned it was not compliant with the provisions of the R Codes in terms of open space, lighting, ventilation and outdoor living areas and it impacted on amenity.
As explained above, the Tribunal had the advantage of a detailed inspection of the site and a number of detailed photographs.
The patio area immediately to the rear of the main residence has a solid roof that adjoins what is described as a pergola, which in effect covers the balance of the rear of the property.
Some fill has been added towards the back of the property and the structures measure a total height of approximately 3.8 metres above natural ground level.
Being inside the pergola area could best be described as being in a conservatory. The walls on both sides rise well above 2 metres and are lined with lattice on the outside of which shade cloth has been attached.
The roof structure consists of what was described in the building licence application plans as shade cloth over timber batons.
It is clearly an impressive and pleasant area which is completely encased in shade cloth.
The City submitted that the reason behind its condition on the building licence that the patio and pergola were not to be enclosed was to ensure compliance with the open space requirements contained at cl 6.4 of the R Codes. The objective of cl 6.4 is stated as being:
To ensure that private and communal open space is set aside and landscaped for attractive streetscapes, attractive settings to compliment buildings, privacy, direct sun and the recreational needs of residents.
The performance criteria under the open space provision of cl 6.4.1 of the R Codes:
Sufficient open space around buildings
•to compliment the building;
•to allow attractive streetscape;
•to suit the future needs of residents, having regard to the type and density of the dwelling.
Clause 6.4.2 of the R Codes headed 'Outdoor living areas' sets out its performance criteria as being:
P2.1An outdoor living area capable of use in conjunction with a habitable room of the dwelling, and if possible, open to winter sun.
P2.2An outdoor area that takes the best advantage of the northern aspect of the site.
The acceptable development provisions of cl 6.4.2 states:
An outdoor living area to be provided:
•in accordance with table 1;
•behind the street set-back area;
•directly accessible from a habitable room of the dwelling;
•with a minimum length and width dimension of 4 m, except in areas coded R-IC where the minimum dimension may be 3 m; and
•to have at least two-thirds of the required area without permanent roof cover.
Under the definitions in Appendix 1 of the R Codes, 'open space' is defined as:
Generally that area of a lot which is not occupied by any building and includes:
•open areas of accessible and useable flat roofs and outdoor living areas above natural ground level;
•areas beneath eaves overhangs, verandahs or patios not more than 0.5 m above natural ground level, unenclosed on at least two sides and covering no more than 10 per cent of the site area or 50 sq m whichever is the lesser;
•pergolas;
•uncovered driveways (including access aisles in parking areas) and uncovered car bays;
but excludes:
•non-accessible roofs, verandahs and balconies over 0.5 m above natural ground level;
•covered car parking bays and walkways, areas for rubbish disposal, stores, outbuildings or plant rooms.
'Pergola' is defined in the R Codes as being '[a]n unroofed openframed structure'.
Under the Explanatory Guidelines of the R Codes when referring to the open space requirements, it states:
In the codes, open space means that part of a site not covered by buildings. However, above ground areas, external to dwellings and accessible and sufficiently large to be usable, such as roof decks, may be included. Similarly, areas at ground level, covered for weather protection or shade may be also included.
Open space serves several functions:
•a setting for buildings;
•access to, and to some extent provision of, car parking spaces;
•opportunities for a range of domestic activities: gardening for delight and food; children's play; outdoor entertaining, and leisure as an extension of inside activities, the pursuit of hobbies; and
•space of utilitarian purposes, such as clothes drying and storage for a range of items.

It is not clear from the definitions as to whether an area covered entirely by shade cloth could be defined as open space, although the Explanatory Guidelines which are not in any way binding or definitive appear to contemplate areas at ground level covered for weather protection or shade may being included.
If strict compliance with the R Codes was the only measure, then it may well be that they are not a complete bar to the applicant's application. However, the R Codes are discretionary guidelines and only one of the issues to be considered when assessing a planning application.
The Council's primary planning document is its planning scheme, DPS 2, which states at cl 1.3.5(f):
... in considering an application for planning approval is to have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development the subject of the application ...
(iii)any approved statement of planning policy of the Commission.
Which in this case would include the R Codes referred to above.
(vi)any Local Planning Policy adopted by the local government ...
In the present case, that would include the ROW Policy which in respect of Category 2 rights of way of which the right of way abutting the site is one states:
Developments abutting a Category 2 Right of Way are encouraged to orient to, and use the Right of Way for primary access, or to ensure that they will not detract from the long term objectives of good traffic management, passive surveillance and creating a pleasant streetscape within the Right of Way.
...
All buildings are to be setback from the Right of Way:
•A minimum of 2.0m at ground floor level; and
...
These setbacks apply to both single houses and strata developments (grouped dwellings). Averaging of setbacks is not permitted. All other setbacks are as per the RCodes. The setback provisions apply to all developments abutting a Right of Way even if it is not used for access. In case of lots abutting more than one Right of Way or a Right of Way and a secondary street, the secondary street setbacks specified in the RCodes apply to the Rights of Way not used for access.
(ix)the compatibility of a use or development within its setting:
...
and finally:
(xiv)the preservation of the amenity of the locality
The clear impression one gets when viewing the pergola from either inside or out is that it is enclosed. Indeed enclosing the rear yard appears to have been the applicant's clear intention at the time of applying for the building licence as he explained in his letter to his neighbours dated 20 December 2002 in which he stated:
... and is our intention to erect a Patio and Pergola so as to fully enclose the rear yard area ...
The shade cloth which covers all of the roof and sides, although allowing a pleasant and protected atmosphere inside, creates an imposing structure both in bulk and scale when viewed from the outside.
Condition 2 of the building licence granted in February 2003 simply states that 'patio and pergola not to be enclosed'.
'Enclose' in the Macquarie Concise Dictionary (4th ed, 2006) is defined as:
1. to shut in; close in on all sides. 2. to surround as with a fence or wall ...
In Webb v Epstein [1956] ALR 154 at 161 in a case where the defendant was charged with being found in an 'inclosed [sic]' area without lawful excuse Smith J stated:
I think the word 'inclosed' [sic] ... requires that there must be a barrier of some kind along such of the boundaries of the space in question as are accessible to the public. It need not be a barrier of a kind difficult to surmount or penetrate, but it must be something more than a mere marking out of the boundaries.
In Goodhew v Morton [1962] 2 All ER 771 MacKenna J when dealing with a matter involving 'being found in an inclosed [sic] yard for an unlawful purpose' stated:
I should add that it is a question of degree whether the space in question is sufficiently surrounded by walls, buildings and fences to justify the description of an 'inclosed [sic] yard', or whether the buildings or walls cover so small a part of the perimeter that the yard would more reasonably be regarded as an open yard.
In the present case, the Tribunal finds that the pergola is enclosed by a lattice and shade cloth on the sides and shade cloth on the roof and for the purposes of Condition 2 of the building licence of February 2003, is enclosed.
From a planning perspective, the principal issue for the Tribunal is one of amenity. Clause 1.3.5(f)(xiv) of DPS 2 clearly states that the local government, in considering an application for planning approval, is to have due regard to the preservation of the amenity of the locality.
Mr Spencer expressed that the locality he surveyed as part of his assessment comprised approximately 50 of the surrounding properties.
The applicant in reply felt that the locality surveyed was too restrictive and selective, and referred to other right of ways between adjacent streets which he believed had highly visible structures. The Tribunal had, at the invitation of the applicant, the opportunity of viewing those rights of way during the site visit.
The issue of amenity has been dealt with on a number of occasions by this Tribunal. In Tempora Pty Ltd and Shire of Kalamunda (1994) 10 SR (WA) 96 at [304], the Town Planning Appeal Tribunal as it then was stated:
Determination of amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proper use will effect the existing amenity and the degree of impact on the locality.
In Sunbay Development Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay) at [21] the Tribunal held:
The general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed. ...
And further stated at [22] that:
... the approach in Tempora v Shire of Kalamunda to the consideration of the impact of a proposed development on existing amenity does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity.
Further, the Tribunal at [28] in Sunbay found that:
... Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property. Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.
The Tribunal is of the view that such a consideration is a relevant in the present, particularly as the Tribunal is hearing the matter 'de novo' and stands in the shoes of the decisionmaker.
Council have a clearly stated policy in respect of developments abutting Category 2 rights of way:
... to ensure that they will not detract from the long term objectives of good traffic management, passive surveillance and creating a pleasant streetscape within the right of way.
One of the methods the ROW Policy adopts to achieve those objectives is to encourage abutting developments to 'orientate to and use the right of way for public access'.
The fact that other developments may already exist which are in the applicant's view intrusive is not a valid ground for allowing a development which the City believes and the Tribunal agrees has a clear detrimental impact on the amenity of part of the locality and in particular on neighbouring properties by reason of its bulk and scale. As stated in Sunbay, allowing the application could well mean that 'the overall amenity of a locality would be undermined incrementally, application by application'.
If the pergola only had shade cloth on the roofed portion, and the rear and side boundaries were open and setback pursuant to the conditions of the building licence of 23 February 2003, the impact of the bulk and scale of the development would, in the Tribunal's view, be greatly reduced.
Not allowing the pergola to be enclosed 'in any way' be it by shade cloth, chicken wire or anything else is clearly a valid planning consideration from an amenity perspective and is particularly important in the present case in terms of the bulk and scale of the development and need not be confined or restricted to the definitions within the R Codes.

Conclusion

In all the circumstances therefore, even though it might be argued that enclosing the pergola area with shade cloth might not be a strict breach of the open space provisions of the R Codes, an issue in respect of which the Tribunal is not giving a definite view in this case, doing so clearly impacts on the amenity of the locality and is not something that should be permitted.
Furthermore, the immediate neighbours agreed to a structure within 450 millimetres of the side boundaries. That is not what happened and is something they did not agree to.
Finally, the applicant was aware of the mistake very early in the construction and although being in the position to, in his words, tell the person erecting it to 'pull it down and start again', chose not to do so.
The Tribunal therefore refuses the application for review, which will be dismissed and the decision of the respondent affirmed.

Order

1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER