Combes & Anor and City Of Nedlands - [2014] WASAT 65

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: COMBES & ANOR and CITY OF NEDLANDS [2014] WASAT 65

MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 13 AND 16 MAY 2014

DELIVERED : 4 JUNE 2014

FILE NO/S: DR 30 of 2014

BETWEEN: OLINKA COMBES
CLAYTON KENDALL
Applicants
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Town planning Development application Scheme provisions for garage walls on side boundaries Whether provisions of Residential Design Codes of Western Australia 2013 apply Definition of 'garage' House of 'substantial construction' Whether 'substantial construction' should be adjacent to proposed garage Evident purpose of clause Whether light and ventilation to rooms adversely affected Condition of planning approval Notification of condition on title Whether notification is reasonable and appropriate

Legislation:

City of Nedlands Town Planning Scheme No 2, cl 1.3, cl 5.2.3, cl 5.6.3, cl 6.4.2, Pt 5
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia 2013, cl 5.1.2, cl 5.1.3, cl 5.2.1, cl 5.4.2
Transfer of Land Act 1893 (WA), s 70A

Result:

Application for review allowed for both proposed garage and pergola subject to conditions

Summary of Tribunal's decision:

Following the approval of a proposed residence at No 10 (Lot 246) Carrington Street, Nedlands in October 2013 the applicants sought approval for the inclusion of a pergola structure on the southern side of the residence and a reduction in the setback to the double garage adjacent to the western boundary.
The two substantive matters for the Tribunal were whether the pergola should be approved and, if so, what conditions should be attached to any such approval, and whether the proposed double garage should be set back 1 metre from the western boundary, as previously approved by the respondent or, 20 millimetres as proposed by the applicants.
In regard to the pergola, the question in dispute between the parties was whether an approval should include a section 70A notification (under the Transfer of Land Act 1893 (WA)) on the title to inform any future landowner that the pergola could be used for parking vehicles. On this issue, the Tribunal concluded that the circumstances of the current review could not in any substantive sense be distinguished from relevant previous decisions of the Tribunal, and it would not be appropriate to attach this condition. It should however be noted that the applicants undertook to construct permanent planter boxes restricting vehicle access to the pergola.
In regard to the boundary wall, given the explicit provisions of the City of Nedlands Town Planning Scheme No 2, the Tribunal rejected the respondent's argument that, should the Tribunal find that the proposed boundary wall met the tests established by the City of Nedlands Town Planning Scheme No 2, it would in addition be necessary to assess the wall against the design principles of the Residential Design Codes 2013.
Furthermore, the Tribunal found that the proposed boundary wall complied with both the provisions of cl 5.6.3(b) and other relevant provisions of the City of Nedlands Town Planning Scheme No 2.
For these reasons, the application for review was allowed in regard to both the proposed boundary wall to the garage and pergola subject to conditions.

Category: B

Representation:

Counsel:

Applicants: Ms B Moharich
Respondent: Mr C Slarke

Solicitors:

Applicants: Flint Moharich
Respondent: McLeods Barristers & Solicitors

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

Beba Enterprises Pty Ltd and Elle Pty Ltd [2014] WASC 141
Firkins and Town of Claremont [2011] WASAT 207
Miragliotta and Town of Vincent [2008] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicants, Olinka Combes and Clayton Kendall, submitted an application to the City of Nedlands (respondent, City or council) seeking approval for the construction of a single storey residence at No 10 (Lot 246) Carrington Street, Nedlands (site or property). During the consideration of the application a number of modifications were made; these comprised the provision of a 1 metre setback on the western boundary to the proposed double garage facing Carrington Street and various changes to the proposed pergola at the rear of the property.
The outcome of these considerations was an approval issued by the City on 23 October 2013 for the construction of a single storey residence; this approval included a 1 metre setback off the western boundary for the proposed double garage. The approval also required that the 'pergola' area to the south of the residence remain unroofed and that a notification pursuant to s 70A of the Transfer of Land Act 1893 (WA) (TL Act) (s 70A notification) be registered on the title to ensure that the 'pergola' area not be used as a covered carport.
A further application was lodged on 18 November 2013. This application included the reduction in the setback to the double garage adjacent to the western boundary, from the approved 1 metre, to 20 millimetres, and the inclusion of a pergola structure adjoining the southern wall of the approved dwelling with a 'vergola' proprietary roof.
On 21 January 2014 an application was made to the Tribunal under the deemed refusal provisions of the respondent's planning scheme.
However, on the 25 February 2014 the council of the respondent issued an approval for amendments to the plans originally approved. However, this approval only applied to the pergola and attached conditions requiring that the pergola not be used for car parking, that it remained an open‑framed roof (permeable to water), and that a notification pursuant to s 70A of the TL Act be registered on the title to ensure that the 'pergola' area was not used as a covered carport.
In this context, there are two substantive matters in dispute between the parties. First, whether the pergola should be approved and, if so, what conditions should be attached to such an approval. Secondly, whether the proposed double garage should be set back 1 metre from the western boundary, as argued by the respondent, or 20 millimetres as proposed by the applicant.

Site and locality

The land the subject of this review is No 10 (Lot 246) Carrington Street, Nedlands.
The site is located on the corner of Carrington Street and Kinninmont Avenue and comprises and area of 1.012 m² with a lot frontage of 19.83 metres to Carrington Street and a depth of 51.059 metres along Kinninmont Avenue. The site has an existing crossover centrally located from Kinninmont Avenue and is currently vacant.
The proposed residence is setback approximately 9 metres from the Carrington Street boundary, 3 metres from the Kinninmont Avenue boundary and, with the exception of the proposed double garage, 1.5 metres from the western boundary. The rear setback will be 9.8 metres although this is the area of the proposed pergola; this structure will be set back 2.67 metres from the southern boundary.
The locality comprises a low density residential neighbourhood characterised by large lots, and substantive single and double storey residences generally set well back from the street with a significant presence of mature trees both in the public and private domains.
On the adjoining lot to the west, at No 12 Carrington Street, a carport is located near the common boundary with the lot the subject of this review. This carport is located approximately 9.5 metres from the Carrington Street boundary and approximately 700 millimetres from the common boundary. To the south of this carport, and separated from it at a distance of approximately 450 millimetres, is a concrete deck providing shelter for a further parking space. This deck also provides a terrace to a first floor study constructed above a garage to the south. The study and garage are constructed 1,020 millimetres from the common boundary.

Planning framework

The City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme) which at cl 1.3 sets out the intent of the Scheme includes the following:
It is proposed to maintain the existing character and density of residential land with only such non‑residential uses as are necessary to service the needs of the district's residential population, except for those uses which may be located along major transport routes within the Scheme area.
Under TPS 2 the land is zoned 'Residential' (R10).
Part 5 of TPS 2, General Provisions, sets out the relationship between TPS 2 and the Residential Design Codes of Western Australia 2013 (Codes) as follows:
5.2.3Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes.
In regard to garages on a side boundary, cl 5.6.3 of TPS 2 states:
The Council may approve a garage to be erected on the side boundary of any lot, if:
(a)there is an existing garage on the adjoining lot within 1 m of that boundary and adjacent to the proposed garage; or
(b)any house on the adjoining lot is of substantial construction and located not more than 2.5 m from that boundary, but constructed in such a manner that light and ventilation to the rooms overlooking that boundary are not adversely affected; and
(c)no danger of spread of fire exists due to the proximity of overhanging eaves;
In dealing with a planning application under cl 6.4.2 of TPS 2 requires the Council to be satisfied that the following conditions and standards have been met:
(a)the nature and intensity of the proposed use or development will not detrimentally affect the locality in terms of its environmental impact by way of its hours of operation, illumination, emission of any kind and the effect on any use or development within the locality; [and]
(b)the plot ratio, site coverage, setbacks, height, landscaping and parking provisions are in keeping with the general character of the locality[.]

The issues

The respondent identified the following issues in the matter under review:
1)Does discretion exist for the respondent to approve the garage with a boundary wall along the western side boundary?
2)To the extent that discretion exists, should that discretion be exercised in the circumstances of this case?
3)Does the application of a condition requiring a s 70A memorial over the use of the proposed pergola provide an appropriate planning purpose and do the merits of the case in this instance warrant the imposition of a memorial being applied?
In response, the applicant accepted issues (1) and (3) but argued the proper characterisation of issue (2) should be as follows:
If the answer to Issue 1 is 'yes', then having regard to the framework set out in the City of Nedlands Town Planning Scheme No 2 (TPS 2), should approval for the garage with a boundary wall be granted[?]
The Tribunal will deal with the s 70A notification and the proposed garage boundary wall in turn.

Section 70A

The Tribunal has on a number of occasions addressed the question of the circumstances under which it would be appropriate to seek notification of the terms of another condition of development approval on the title under s 70A of the TL Act (Miragliotta and Town of Vincent [2008] WASAT 207 (Miragliotta), Firkins and Town of Claremont [2011] WASAT 207 (Firkins))
In Miragliotta the Tribunal found at [24] that:
… to require typical or usual conditions of development approval to be notified on title would impose a significant and unnecessary burden on the carrying out of development in Western Australia and would be contrary to the purpose of the PD Act to 'provide for an efficient and effective land use planning system in the State' (s 3(1)(b)).
In Miragliotta the Tribunal also noted at [26] and [27] that:
The conditions contemplated by condition (i) imposed by the Council, if expressly imposed as conditions of development approval, would run with the land and bind future owners and occupiers. The conditions are enforceable under the provisions of TPS 1 and the PD Act.
It is therefore not reasonable or appropriate to impose a further condition requiring notification of the contemplated conditions on title under s 70A of the TL Act.
Finally, the Tribunal expressed the view at [29] of Miragliotta that examples of conditions requiring notification would properly involve notification of potential external impacts of commercial or non‑residential activities which may affect residential amenity, rather than notification of a condition of development approval regulating the use of the site itself.
While the respondent argued that the proposed pergola imposed a continuing obligation which affects the use and enjoyment of the land, and is unusual, the Tribunal takes the view that the appropriate circumstance pertaining to the use of s 70A of the TL Act would, in general, involve notification of potential external impacts such as aircraft noise or the provisions of a fire management plan.
Given that these are not relevant, the circumstances of the current review cannot in any substantive sense be distinguished from the questions addressed by the Tribunal in Miragliotta.

The proposed garage boundary wall

The initial question arising when dealing with the proposed garage boundary wall are the relevant planning provisions against which the proposed wall should be assessed.
It was agreed by the parties that the provisions of cl 5.6.3 of TPS 2 were relevant. However, the respondent submitted that should the Tribunal find the proposed wall met the tests established by cl 5.6.3 of TPS 2, it would in addition be necessary to assess the proposed boundary wall against the design principles established by cl 5.1.3 of the Codes.
This was challenged by the applicant, who argued that the wording of cl 5.2.3 of TPS 2 was unambiguous and, where there were specific provisions in TPS 2, any aspects of a proposal which fell within the ambit of such provisions would not subsequently require assessment under the provisions of the Codes. In submitting this argument, the applicant accepted that aspects of such proposals, falling outside the ambit of the specific provisions of TPS 2, would require consideration under any other relevant provisions of TPS 2, including the Codes.
On this question, the Tribunal accepts the submission of the applicant, as a literal reading does not raise any doubts as to the legislative intent to provide comprehensive provisions in regard to the development of garages on a side boundary. Furthermore, this provision has been in place since the inception of TPS 2 in 1985 and therefore pre‑dated the introduction of the Codes in 1998. The approach suggested by the respondent would, however, create inconvenience for all parties involved, in that it duplicates aspects of the assessment and would, in regard to some aspects, involve the application of provisions which, in a number of regards, involve the application of potentially conflicting criteria to the assessment.
While the Tribunal accepts the contention of the respondent, that in interpreting cl 5.6.3 of TPS 2 'may approve' establishes discretion, this, in the Tribunal's view, simply acknowledges that a proposed garage wall meeting the requirements of this clause is also required to meet other provisions of TPS 2 and, should it fail to do so, it would not be appropriate to approve such a wall.
Having dealt with this question, the issue is then whether the proposed garage wall complies with the provisions of cl 5.6.3 of TPS 2. Such compliance would require meeting the tests established by either cl 5.6.3(a) or (b) of TPS 2, in addition to meeting the requirements of cl 5.6.3(c). It was agreed by the parties that the proposed wall did not raise any issues in regard to cl 5.6.3(c) of TPS 2.
In regard to cl 5.6.3(a) of TPS 2, the applicant essentially argued that the existing structure on the adjoining lot was a single structure which should be classified as a 'garage' for the purpose of cl 5.6.3 of TPS 2. The Tribunal rejects this interpretation on the basis that the structure adjoining the location of the proposed garage wall was constructed as a later addition to the dwelling, was approved as a carport, and is structurally and spatially independent of both the existing residence and the first floor terrace to the south. Furthermore, having argued that the provisions of the Codes are not relevant in assessing applications under cl 5.6.3 of TPS 2 (and were not available for the initial 13 years in which the clause was applied), it is counterintuitive to premise a further argument on a Code definition, particularly where this would also carry the consequence that such a structure would not comply with the definition of a building under the Codes.
In regard to cl 5.6.3(b) of TPS 2, two initial issues arose: first, whether the house on the adjoining lot was 'of substantial construction'; and, secondly, whether the proposed boundary wall would adversely affect light and ventilation to rooms overlooking the boundary. In addition, the respondent argued that 'of substantial construction' did not necessarily apply to the totality of the house and that there was an implied further test that any component of substantial construction needed to be adjacent to the proposed garage boundary wall. The latter contention, more formally stated, was that cl 5.6.3(b) of TPS 2 should be read as including the following additional italicised words:
[A]ny house on the adjoining lot has a component which is of substantial construction and which is located adjacent to the proposed garage and not more than 2.5 m from that boundary, but constructed in such a manner that light and ventilation to the rooms overlooking that boundary are not adversely affected.
In Beba Enterprises Pty Ltd and Elle Pty Ltd [2014] WASC 141 at [25] and [26] Allanson J noted that the High Court has again considered when a court may be justified in reading a statutory provision as if it contained additional words:
The majority said, at [38]:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.
The dissenting judges, Gageler and Keane JJ, said at [65]:
The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Based on this precedent the Tribunal rejects the proposition of adding words which fill an alleged gap in the original clause.
Given the fact that 'substantial' is not defined in TPS 2 and is, in any event, atypical in terms of planning provisions, it is logical to go to the evident purpose of the provision of cl 5.6.3(b) of TPS 2.
On its face it implies that in a situation where the residence on the adjacent lot was a modest single storey structure set well back from the common boundary (of which there remain many in Nedlands), it would not be appropriate to approve a garage with a wall on the common boundary of the adjacent lot. In this instance, the residence at 12 Carrington Street has a number of structures in reasonable proximity to the boundary, one component of which is a two storey structure. The Tribunal rejected the respondent's argument that any component of 'substantial construction' needs to be adjacent to the proposed wall; the clause does not require this, and the only reason to do so would to ensure that any potential impacts do not adversely affect the adjacent residence. This matter is in any event, specifically addressed by the second part of the clause. Thus the Tribunal accepts the applicant's submission that the residence at 12 Carrington Street is of substantial construction for the purposes of cl 5.6.3(b) of TPS 2.

In regard to 'light and ventilation to the rooms overlooking that boundary' it should be noted that the proposed wall is not directly in front of the only window overlooking the boundary, and the parties agreed that ventilation was not at issue.
Thus the question reverts to any adverse effect on the light to the room overlooking the boundary. In addressing this question the Tribunal is of the view that the provisions of the Codes (cl 5.4.2) are not relevant and more rigorous standards need to be applied. The evidence provided established that at 9 am on 21 June winter solstice the relevant window would be totally overshadowed by the deck above the second parking space on the same lot.
While the objections of the adjoining neighbour are understandable in coming to the correct and preferable decision, cl 5.6.3(b) of TPS 2 needs to be read in its broader context. That broader context is that a two storey wall to a residence on the subject lot, complying with the deemed to comply provisions of the Codes in spite of an increased setback, could not only substantially diminish the light to the relevant window but would be likely to provide a far worse outcome in terms of the sense of enclosure as perceived from 12 Carrington Street. In this context the Tribunal believes that the proposed boundary wall complies with the provisions of cl 5.6.3(b) of TPS 2.
Having dealt with the provisions of cl 5.6.3 of TPS 2 the proposed wall needs to be assessed against other relevant provisions of TPS 2 and the Codes.
These are cl 1.3 of TPS 2 which seeks to 'maintain the existing character and density of residential land' and the provisions of cl 6.4.2 to ensure 'the nature and intensity of the proposed use or development will not detrimentally affect the locality' and that 'the plot ratio, site coverage, setbacks, height, landscaping and parking provisions are in keeping with the general character of the locality'.
The proposed wall will effectively widen the garage structure by 980 millimetres. This addition to the approved wall will be set back approximately 10.2 metres from the Carrington Street boundary behind a 1.8 metre high fence and gates. In the context of the marginal increase in width, the substantive setback from the street, the screening effect of the fence and the number of boundary walls already existent in this section of Carrington Street, any impacts will be barely perceptible. In addition, the wall complies with the deemed to comply provisions of cl 5.1.2 and cl 5.2.1 of the Codes.

Conditions

The only conditions in contention between the parties were the application of a s 70A notification which has been dealt with above and a condition suggested by the respondent which reads as follows:
The garage boundary wall shall have a maximum height of 3m from natural ground level[.]
The applicant objected to this condition. Given that in assessing the boundary wall the height originally proposed had, in the Tribunal's view, met the requirements of cl 5.6.3(b), there is, in the Tribunal's view, no reason to require a reduction in height by applying this condition.

Conclusion

This review raised issues both in regard to the relevant planning provisions to be applied in assessing the proposed garage wall and whether in the circumstances it might be appropriate to seek notification on the title under s 70A of the LT Act in approving the proposed pergola.
In response to the first issue, the Tribunal determined that as a literal reading of cl 5.2.3 of TPS 2 does not raise any doubts as to the legislative intent of that clause and given the specific provisions in cl 5.6.3 of TPS 2, any aspects of a proposal which fell within the ambit of such provisions would not require assessment under the provisions of the Codes.
In response to the latter issue, the Tribunal, following the precedent of previous Tribunal decisions, found that conditions requiring notification would properly involve notification of potential external impacts of commercial or non‑residential activities which may affect residential amenity, rather than notification of a condition of development approval regulating use of the site itself.
Within this context, the Tribunal found that the proposed boundary wall complied with both the provisions of cl 5.6.3(b) of TPS 2 and other relevant provisions of the Scheme, and, given the application of a number of conditions agreed between the parties, it would not be appropriate to seek notification on the title under s 70A of the LT Act in approving the pergola.
For these reasons the review was allowed, subject to conditions, for both the proposed garage and the pergola.

Orders

1.In accordance with the provisions of the City of Nedlands Town Planning Scheme No 2 and the authority delegated to the Council (or the Tribunal in its place) under the provisions of the Metropolitan Region Scheme, approval to commence development is granted for the pergola and garage as indicated on the plans on Sheets 1 and 2 by Ritter Building Design dated 14 November 2013 and the revised Elevations on the plans dated 13 May 2014 (Sheet 3 of 3) subject to the following conditions:
(a)The development shall at all times comply with the approved plans and these conditions of approval.
(b)This approval only applies to the garage and the pergola shown on the approved plans.
(c)The pergola (as marked in red on the plans) is not to be used for parking.
(d)In order to ensure that the pergola is not used for car parking, the planter boxes shown in Elevation 2 on the approved plans dated 13 May 2014 (Sheet 3 of 3) must be put in place before the dwelling is first occupied, and must thereafter remain in place unless their removal or modification is subsequently approved by the City of Nedlands.
(e)The pergola (as marked in red on the plans) must remain an unenclosed open‑framed structure covered in a water permeable material or unroofed.
(f)All footings and structures of the garage boundary wall shall be constructed wholly inside the site boundaries.
(g)The garage boundary wall shall be finished to a professional standard, to the satisfaction of the City of Nedlands provided access is granted by the adjoining lot owner to finish the wall.
(h)All stormwater from the development, which includes permeable and non‑permeable areas, shall be contained onsite by draining to soakwells of adequate capacity to contain run‑off from a 20 year recurrent storm event. Soakwells shall be a minimum capacity of 1.0 m³ for every 80 m² of calculated surface area of the development.
(i)Any additional development or varied development which is not in accordance with the approved plans or these conditions of approval will require further approval by Council.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER