COLE and CITY OF GOSNELLS - [2006] WASAT 275

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: COLE and CITY OF SWAN [2006] WASAT 275

MEMBER: MR J JORDAN (MEMBER)

HEARD: 4 AUGUST 2006

DELIVERED : 8 SEPTEMBER 2006

FILE NO/S: DR 173 of 2006

BETWEEN: DAMIEN COLE
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Local Government– Private works on public place – Steel bollards erected on verge – Protection of verge treatment - Permission of Local Government required under Local Government (Uniform Local Provisions) Regulations 1996 – Permission not obtained – Application for retrospective approval refused – Non-frangible steel bollards a hazard on verge – Frangible pine bollards acceptable – Setback of bollards from kerb – Safety considerations –Insurance policy required by regulations – Caveat on certificate of title of adjoining lots advising of insurance requirement not supported – Approval for bollards to lapse on disposal of adjoining lots

Legislation:

Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 17, reg 17(5)(a)
Local Government Act 1995 (WA), s 9.7, s 3.25, s 3.25(1)(b), s 70(a), s 9.60 Sch 9.1 cl 8, Sch 9.1 cl 8(1), cl 8(5)

Result:

The application for review is allowed
Conditional approval is granted for pine bollards behind the kerb

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr M Hunt

Solicitors:

Applicant: Self-represented
Respondent: City of Swan

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Damien Cole applied for retrospective approval for steel bollards he installed adjacent to the kerb to protect the verge lawn in front of his premises at the corner of Hyne Road and Steel Court in South Guildford.
The City of Swan refused Mr Cole's application because it considered the steel bollards to be an unacceptable hazard to vehicles.
The Tribunal found that treated pine bollards adjacent to the kerb not cemented into the ground would serve the same purpose and not pose the hazard of steel bollards. Conditional approval was granted for replacing the steel bollards with pine bollards.

Introduction

Mr Damien Cole (applicant) has property and business interests that include premises on three adjacent lots at the south east corner of Hyne Road and Steel Court, South Guildford. The three lots are described as 18 Hyne Road, 16 Hyne Road, on the corner of Steel Court and 3 Steel Court. The total street frontage of these three lots is 129 metres. Between the vehicle cross‑overs constructed to each of the lots, the applicant has planted the verge with lawn. It was common ground between the parties, and photographs put into evidence confirmed, that the lawn was irrigated and well maintained. The photographs show that the lawn complemented the well tendered landscaping in the front setback of each of the three lots.
In May 2005, the City of Swan (respondent) wrote to the applicant advising that it had come to its attention that steel bollards had been constructed in the street verge adjacent to his property causing an obstruction within the thoroughfare. The applicant was asked to remove the bollards as they had been installed without the required approval.
In August 2005, the respondent issued a notice under s 3.25 of the Local Government Act 1995 (WA) (LG Act), ordering that the bollards be removed from the verge because they had been installed without the necessary authority of the respondent having been sought and obtained.
In October 2005, the respondent wrote to the applicant asking that he lodge an application for approval of the bollards installed in the verge. This, it was said at the hearing, was to provide the respondent with the opportunity to consider and make a decision on the bollards.
An application was lodged by the applicant in January 2006, and on 22 March 2006 it was refused by the respondent. The application for review of this decision of the respondent was then filed with the Tribunal.

Regulatory controls

Section 9.60 of the LG Act, provides that the Governor may make regulations which are to operate as though they were local laws and that the regulations may deal with any matter specified in Sch 9.1 of the LG Act.
Schedule 9.1 of the LG Act at cl 8(1) provides that regulations may be made to prohibit or control the construction of anything on, over, or under a public thoroughfare or other public place that is local government property.
Clause 8(5) of Sch 9.1 states:
"Regulations may require anything constructed in accordance with regulations to be maintained and may require the person who constructs it to ensure against any liability that the Local Government may incur in connection with this construction, maintenance, or use."
The Local Government (Uniform Local Provisions) Regulations 1996 (WA) (the regulations), provide at reg 17:
"(1)A person who constructs anything on, over, or under a public, thoroughfare or other public place that is local government property without first obtaining written permission from the local government commits an offence.
(2)A local government may‑
a)grant permission to construct anything on, over or under a public thoroughfare or other public place that is local government property; and
b)impose conditions in respect of the permission, which may include a condition imposing a charge for any damage to the public thoroughfare or public place resulting from the construction.
(3)It is a condition of the permission that the ordinary and reasonable use of the public thoroughfare or public place for the purpose to which is dedicated is not to be permanently or unreasonably obstructed.
(4)A person who fails to comply with a condition of the permission commits an offence.
(5)A person who constructs anything in accordance with the permission under this section is required to‑
a)maintain it; and
b)obtain from an insurance company approved by the local government an insurance policy, in the joint names of the local government and the person, indemnifying the local government against any claim for damages which may arise in, or out of, its construction, maintenance or use.
…"
When the local government refuses an application for permission to construct something in the thoroughfare, s 9.7 of the LG Act affords a person a right to apply to the State Administrative Tribunal for a review of the decision.

Discussion

The respondent engaged as an expert witness Mr Anthony Shaw, a traffic engineer, an accredited road safety auditor and an accredited road traffic manager. Mr Shaw visited the site and described the ten steel bollards as consisting of what appear to be gas cylinders which had been installed in the verge immediately behind the kerbing. The bollards had been painted green and were approximately 250 millimetres in diameter with dome tops. Seven of the bollards were approximately 300 millimetres in height and three bollards were approximately 950 millimetres in height. He noted that concrete was set around the base of the cylinders, but it was not evident as to the depth of this concrete.
Mr Shaw explained that the most widely accepted form of risk management tool for road side hazards is the "clear zone" concept. A clear zone is an area adjacent to a traffic lane that should be kept free of features that would be potentially hazardous to errant vehicles. This included non‑frangible hazards such as steel bollards. The term frangible used in this context was consistent with its ordinary meaning of breakable. The parties accepted that a frangible barrier would either break or be displaced so that there was minimal damage to a vehicle. A non‑frangible obstacle would not be breakable or readily moved and so would cause damage to a moving vehicle which ran into it.
Mr Shaw said the bollards were point hazards. He referred to the document "Main Roads Western Australia Assessment of Roadside Hazards" which defined point hazards as "permanent installations, of limited length, that can be struck by vehicles running off the road". The document said of point hazards that they should usually be removed from clear zones. In Mr Shaw's opinion, the cylinders installed as bollards pose a potential and unacceptable hazard to road users and should be removed.
When questioned about trees, poles and other obstacles in clear zones on streets elsewhere, Mr Shaw referred to the need for decision‑makers to weigh economic and environmental considerations with the practicality of removing an obstacle.
Mr Shaw said that in terms of preference his advice first would be to remove obstacles entirely. If this were undesirable or unacceptable, the next step would be to create a clear zone and to substitute non‑frangible objects with frangible objects. From there the choice would be to engineer the thoroughfare such as to reduce the risk.
When asked about frangible bollards as an alternative to the current situation, Mr Shaw said pine posts for example would have more give, and therefore be energy absorbing. If the steel bollards were to remain, in his opinion they should be engineered out of the clear zone by relocating them two metres to three metres from the kerb.
The respondent also called as a witness Mr Charles Sullivan, a civil engineer who is also the respondent's Executive Manager, Operational and Development Services. The applicant referred him to photographs of examples of non‑frangible obstructions, such as trees and poles, in the clear zone of other roads, and particularly heavily traffic roads in the district. Mr Sullivan said that when particular instances were drawn to its attention, the respondent endeavoured to deal with them, but this included making a judgment on whether, for example, the environmental impact of removing mature trees was acceptable. In his view, the examples given did not provide a reason for not acting on the presence of the steel bollards in Hyne Road. Mr Sullivan was of the view that bollards, as currently installed, were dangerous due to their location immediately adjacent to the kerb, the solid nature of the material, the height of them and the unexpected presence of such obstacles for any visitor who was unfamiliar with that particular portion of the thoroughfare.
Mr Sullivan drew attention to the respondent's Guideline GCLL 7.1 and its Policy Pol‑C‑039 both titled "Verge Establishment and Maintenance". These documents cited, from Consolidated Local Law 7.3, that the varieties of permissible verge treatments included lawn and reticulation, but did not include bollards. Local Law 7.4 required that approval be obtained to install verge treatments other than the permissible verge treatments.
Mr Sullivan put into evidence a copy of the respondent's Drawing Number STD39‑1s Amendment G "Bollard Fencing Standard Dimensions and Details". Notes on the drawing described the standard bollard as 'Tanalith E' treated pine – 150 millimetre diameter domed top". The drawing stated that the standard for such bollards is that they be installed at a maximum 1500 millimetres centres if they are to serve as "fencing".
Mr Sullivan accepted that there were comparatively low traffic flows in Hyne Road and Steel Court, both of which were a cul-de-sac. Mr Sullivan was of the opinion that, in these streets, the placement of frangible bollards at a setback distance of 1200 millimetres from the face of the kerb was acceptable if there were to be a clear zone created.
Mr Cole gave evidence on his own behalf. He said there were a number of trucking companies and transport depots in the two cul-de-sacs and in the past there had been incidents of vehicles, including heavy vehicles reversing on to or turning around on the verge and causing damage. He said the bollards were installed to discourage vehicles using the verge and thereby to help maintain the high standard of amenity. Mr Cole expressed disappointment that he was prepared to make an effort to maintain his verge at such a standard, whereas other verges were neglected and that in other streets the respondent had allowed traffic hazards to remain adjacent to kerbs.
Mr Cole, on listening to the evidence, acknowledged that steel bollards might be less desirable than frangible bollards. He was concerned, however, to have bollards installed adjacent to the kerb to ensure that use of the verge by vehicles was discouraged, including parking on any clear zone that might be created if the bollards were set back.

Conclusion and finding

At its meeting of 22 March 2006, the respondent, in addition to refusing the application for retrospective approval for the steel bollards behind the kerb line, advised the applicant that it would be prepared to approve the installation of bollards as a form of verge treatment subject to various conditions. One of the conditions required that the bollards be pine in accordance with the City's drawing STD39‑1s, with a minimum setback distance of 1200 millimetres from the face of the kerb.
The Tribunal noted at the hearing that the papers did not include from either of the parties plans of what they would find acceptable. At the conclusion of the hearing, the Tribunal ordered that the respective parties, having heard the evidence, provide plans which illustrated the location of bollards in the verge that they would want were the Tribunal inclined to the view that the bollards be allowed. The respondent provided two plans. One illustrated the location of bollards consistent with its resolution of 22 March 2006. The second plan was titled "Option 2" which had written on it "100 mm square treated pine bollard (frangible base). 800 mm high installed behind kerb line". The bollard spacing was shown on Option 2 as having 1500 millimetre centres.
The applicant had the advantage of viewing both the Option one plan and Option two plan prepared by the respondent. The applicant then provided to the Tribunal a plan which was an adaption of Option two which included the notation "required bollards, positions as shown". This plan retained the type of bollard identified by the respondent and in the location behind the kerb line, but significantly reduced the number of bollards. It was apparent the applicant wanted the bollards to demarcate the verge rather than to be a form of fence.
The applicant has established a well maintained verge in front of his three properties. His intent of discouraging vehicles from using the verge is understandable, and has been acknowledged by the respondent. The parties now agree that the steel bollards installed have potential to cause difficulties. The parties have presented options to resolve the matter consistent with the particular location of the properties. From the submissions received from the two parties, the Tribunal is of the view that the installation of pine bollards as shown on the amended Option two plan submitted by the applicant could be allowed.

Conditions

In the schedule of draft conditions filed by the respondent at the orders of the Tribunal, condition (c), required that the applicant obtain an insurance policy in the joint names of the City of Swan and the applicant indemnifying the City of Swan against any claim for damages over the verge treatment. To note is that this is a mandatory requirement of reg 17(5)(a) of the regulations.Further to condition (c) the respondent also included draft condition (d) to read:
"The applicant entering into an agreement approved by the Council's solicitors agreeing to place a caveat on the title to enforce approval condition (c) above. This is to be prepared and placed on the title at the cost of the applicant."
Mr Hunt for the respondent said that the respondent's legal advice was that a caveat would ensure successors in title were made aware of their liabilities in regard to the insurance policy. He said a caveat was simple to implement, administratively convenient for the respondent and was considered to be practical, fair and to facilitate ensuring the insurance condition remains and is enforceable.
Mr Cole objected to the placing of a caveat on any of the three titles. He considered it to be unreasonable that a private land owner be subject to such a restriction. He did not want to put himself in the position where he had to get the approval of the City if he wished to deal with his property.
The Tribunal had decided not to impose the respondent's requested condition (d). The Tribunal is not convinced that an obligation to have an insurance policy in place in case of events that happen on the verge, gives rise to a caveatable interest in the three properties adjacent to that verge.
In any event, the Tribunal has formed the view that condition (d) is not necessary, and alternative conditions can be imposed to address the obligations of the applicant. This is because the applicant is the party interested in the bollards being in place as it is he who wishes to deal with the verge in a particular manner. It is a requirement of the regulations that he have a current insurance policy while the bollards are in place. If the applicant's approach to the verge changes then the need for the bollards and the related insurance policy can be addressed and if necessary he can be required to remove the bollards. While the bollards are in place the applicant must comply with the conditions of approval.
Once the land is disposed of the future owner might not want to maintain the verge to the same high standard with bollards. There would then be no need for the new owner to maintain the insurance policy. The Tribunal considers that any verge treatment a future owner might want can be dealt with at the time.

Orders

The Tribunal orders as follows:
1.The application for review be allowed.
2.Approval is granted under reg 17 of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) for the applicant to install and maintain pine bollards as a form of verge treatment in the road reserve in front of his properties at numbers 16 and 18 Hyne Road and number three Steel Court, South Guildford, subject to the following:
a)The applicant installing 100 millimetre square, treated pine bollards (frangible base) 800 millimetres high, behind the kerb line in accordance with the attached plan headed "Option two" with the notation "Required Bollards Positions as Shown".
b)The applicant entering into a written agreement approved by Council's Solicitors agreeing to maintain the bollards.
c)The applicant obtaining from an insurance company approved by the City of Swan an insurance policy, in the joint names of the City of Swan and the applicant indemnifying the City of Swan against any claim for damages over the verge treatment. This is to be at the cost of the applicant.
d)This approval for the bollards shall lapse if the insurance policy referred to in condition (c) is no longer current.
e)In the event that the applicant disposes of any of the three properties known as 16 Hyne Road, 18 Hyne Road and 3 Steel Court, the approval for the bollards in the verge adjoining the property disposed of shall lapse.
f)In the event that the approval for any bollards lapses, the bollards shall be removed at the cost of the applicant unless a further approval is sought and obtained from the City of Swan.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER