Coventry Square WA Pty Ltd and City Of Bayswater
[2014] WASAT 133
•6 OCTOBER 2014
COVENTRY SQUARE WA PTY LTD and CITY OF BAYSWATER [2014] WASAT 133
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 133 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:257/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 6/10/14 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Tribunal's determination affirmed | ||
| B | |||
| PDF Version |
| Parties: | COVENTRY SQUARE WA PTY LTD CITY OF BAYSWATER |
Catchwords: | Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse to grant development approval for existing Colorbond sheetmetal boundary fence Tribunal determined that approval of fence would not be consistent with orderly and proper planning Urban design and visual quality Tribunal found that fence is of low quality urban design and therefore does not satisfy planning objectives in local planning scheme and nonstatutory strategic planning documents concerning visual quality of development Whether Tribunal misinterpreted provisions of strategic planning documents Whether Tribunal's determination manifestly unreasonable Whether Tribunal failed to apply proper test for whether fence is 'generally in accordance with' approved Outline Development Plan Whether Tribunal failed to take into account a relevant consideration Whether Tribunal obliged to take into account provisions of Fencing Local Law Whether denial of procedural fairness |
Legislation: | City of Bayswater Town Planning Scheme No 23 Morley City Centre Scheme, cl 1.10, cl 1.10.1(g), cl 1.10.2(1), cl 3.4, cl 3.5(k), cl 3.8.1, cl 3.8.1(d), cl 3.8.1(e), cl 4.4.1, cl 4.7.1, cl 5.4.4(a) City of Bayswater District Planning Scheme No 21 Local Government Act 1995 (WA) Planning and Development Act 2005 (WA), s 244 State Administrative Tribunal Act 2004 (WA), s 3(1), s 32(1) Town Planning and Development Act 1928 (WA) |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; (1994) 34 ALD 324; (1994) 127 ALR 699 Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 183 Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 7 Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 83 Re Shire of Mundaring; Ex parte Solomon & Ors [2007] WASCA 132 Thomas and Town of Cambridge [2013] WASAT 206 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 |
Orders | On the application determined by Deputy President, Judge Parry on 6 October 2014, it is ordered that:,1. The application for review by a judicial member is dismissed.,2. The determination of the Tribunal made on 3 July 2014 in DR 275 of 2012 is affirmed. |
Summary | Coventry Square WA Pty Ltd sought review by a judicial member upon a matter involving a question of law of a determination made by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the City of Bayswater to refuse development approval for an existing 2.1 metre high and 245 metre long Colorbond sheetmetal boundary fence. The Tribunal refused development approval for the fence, because it found that the fence is of low quality urban design and therefore does not satisfy the planning objectives in the local planning scheme and in applicable nonstatutory strategic planning documents concerning visual quality of development.,The judicial member determined that the Tribunal did not err in law in any of the respects alleged by Coventry Square WA Pty Ltd. The judicial member determined that the Tribunal did not err in law in its reference to and reliance upon nonstatutory strategic planning documents in its determination to refuse development approval and, in particular, did not misinterpret the provisions of the strategic planning documents, did not exercise its planning discretion in a manner that was manifestly unreasonable and did not fail to apply the proper test for whether the development is 'generally in accordance with' one of those documents. ,The judicial member also determined that the Tribunal was not expressly or impliedly obliged to take into account the provisions of the City of Bayswater Fencing and Flooding Local Law, which concerns and regulates the erection and maintenance of fences under the Local Government Act 1995 (WA), in determining whether to grant development approval for the fence under the relevant local planning scheme. The Tribunal did not, therefore, fail to take into account a relevant consideration.,Finally, the judicial member determined that the Tribunal did not deny procedural fairness to Coventry Square WA Pty Ltd in making the determination to refuse development approval for the fence.,The Tribunal's determination was therefore affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : COVENTRY SQUARE WA PTY LTD and CITY OF BAYSWATER [2014] WASAT 133 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 6 OCTOBER 2014 FILE NO/S : DR 257 of 2014 BETWEEN : COVENTRY SQUARE WA PTY LTD
- Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse to grant development approval for existing Colorbond sheetmetal boundary fence Tribunal determined that approval of fence would not be consistent with orderly and proper planning Urban design and visual quality Tribunal found that fence is of low quality urban design and therefore does not satisfy planning objectives in local planning scheme and nonstatutory strategic planning documents concerning visual quality of development Whether Tribunal misinterpreted provisions of strategic planning documents Whether Tribunal's determination manifestly unreasonable Whether Tribunal failed to apply proper test for whether fence is 'generally in accordance with' approved Outline Development Plan Whether Tribunal failed to take into account a relevant consideration Whether Tribunal obliged to take into account provisions of Fencing Local Law Whether denial of procedural fairness
Legislation:
City of Bayswater Town Planning Scheme No 23 Morley City Centre Scheme, cl 1.10, cl 1.10.1(g), cl 1.10.2(1), cl 3.4, cl 3.5(k), cl 3.8.1, cl 3.8.1(d), cl 3.8.1(e), cl 4.4.1, cl 4.7.1, cl 5.4.4(a)
City of Bayswater District Planning Scheme No 21
Local Government Act 1995 (WA)
Planning and Development Act 2005 (WA), s 244
State Administrative Tribunal Act 2004 (WA), s 3(1), s 32(1)
Town Planning and Development Act 1928 (WA)
Result:
Tribunal's determination affirmed
Summary of Tribunal's decision:
Coventry Square WA Pty Ltd sought review by a judicial member upon a matter involving a question of law of a determination made by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the City of Bayswater to refuse development approval for an existing 2.1 metre high and 245 metre long Colorbond sheetmetal boundary fence. The Tribunal refused development approval for the fence, because it found that the fence is of low quality urban design and therefore does not satisfy the planning objectives in the local planning scheme and in applicable nonstatutory strategic planning documents concerning visual quality of development.
The judicial member determined that the Tribunal did not err in law in any of the respects alleged by Coventry Square WA Pty Ltd. The judicial member determined that the Tribunal did not err in law in its reference to and reliance upon nonstatutory strategic planning documents in its determination to refuse development approval and, in particular, did not misinterpret the provisions of the strategic planning documents, did not exercise its planning discretion in a manner that was manifestly unreasonable and did not fail to apply the proper test for whether the development is 'generally in accordance with' one of those documents.
The judicial member also determined that the Tribunal was not expressly or impliedly obliged to take into account the provisions of the City of Bayswater Fencing and Flooding Local Law, which concerns and regulates the erection and maintenance of fences under the Local Government Act 1995 (WA), in determining whether to grant development approval for the fence under the relevant local planning scheme. The Tribunal did not, therefore, fail to take into account a relevant consideration.
Finally, the judicial member determined that the Tribunal did not deny procedural fairness to Coventry Square WA Pty Ltd in making the determination to refuse development approval for the fence.
The Tribunal's determination was therefore affirmed.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr CA Slarke
Solicitors:
Applicant : N/A
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; (1994) 34 ALD 324; (1994) 127 ALR 699
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 183
Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 7
Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 83
Re Shire of Mundaring; Ex parte Solomon & Ors [2007] WASCA 132
Thomas and Town of Cambridge [2013] WASAT 206
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Application for review by a judicial member
1 Coventry Square WA Pty Ltd (Coventry) seeks review by a judicial member, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal constituted by Member Mr J Jordan in a planning review proceeding brought by Coventry under s 252(1) of the PD Act (determination). In the planning review proceeding, Coventry sought review by the Tribunal of the refusal by the City of Bayswater (City or Council) to grant development approval for an existing 2.1 metre high and 245 metre long Colorbond sheetmetal boundary fence (fence) at No 243253 Walter Road West, Morley (site). The fence has a frontage of 170 metres to Lennon Street and 75 metres to a pedestrian accessway between Lennon Street and Wellington Road. The site contains a large building used as a market.
2 Following a hearing over two days including a view of the site, the Tribunal published a determination (earlier determination) and reasons for decision dismissing the application for review and affirming the Council's refusal of development approval for the fence: Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 183 (Tribunal's earlier reasons).
3 Coventry successfully sought review of the earlier determination by a judicial member under s 244 of the PD Act: Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 7 (earlier review reasons). I held in the earlier review reasons that, in making the earlier determination and in particular in determining that the fence does not satisfy the planning objective of enhancing the visual amenity of Lennon Street, the Tribunal erred in law in two related, material respects in its application of cl 4.7.1 of the City of Bayswater Town Planning Scheme No 23 Morley City Centre Scheme (TPS 23 or Scheme). TPS 23 applies to the site. Clause 4.7.1 of TPS 23 states as follows:
Where in the opinion of the Council the amenity of a place, street or locality relates significantly to the architectural or physical character of existing buildings and/or the landscape, the Council shall require that the appearance of any proposed development shall enhance the amenity of the place, street or locality in question.
4 I held in the earlier review reasons at [25] [34] that, in the earlier determination, the Tribunal erred in law in the following two respects:
1) [T]he Tribunal erred in law in failing to consider and determine whether the condition precedent to the application of cl 4.7.1 of TPS 23, that is, that it was of 'the opinion … [that] the amenity of [the] place, street, or locality relates significantly to the architectural or physical character of existing buildings and/or the landscape' was satisfied; and
2) [T]he Tribunal erred in law by misdirecting itself as to the meaning and effect of cl 4.7.1 of TPS 23.
(At [25] of the earlier review reasons).
5 Having concluded that these errors of law were 'of a sufficiently material character in the circumstances of the case that they vitiate the entirety of the Tribunal's determination' (at [36] of the earlier review reasons), I made the following orders:
1. The application for review by a judicial member is allowed.
2. The determination of the Tribunal made on 13 November 2013 dismissing the application for review in proceeding DR 275 of 2012 is revoked.
3. The application for review in proceeding DR 275 of 2012 is remitted to Member Mr J Jordan for determination in accordance with law.
4. By 7 February 2014, each party may file, and if so must serve, any supplementary written submissions in proceeding DR 275 of 2012.
5. By 14 February 2014, each party may file, and if so must serve, any written submissions in reply to the other party's submissions filed in accordance with the preceding order.
6. Subject to my [sic any] order in DR 275 of 2012, that proceeding is to be determined on the basis of the evidence, submissions and view at the hearing on 28 and 29 August 2013 and any written submissions filed in accordance with the preceding orders, without any further hearing.
6 The parties filed supplementary written submissions and written submissions in reply. Member Jordan subsequently published the determination which is the subject of the current application for review by a judicial member and reasons for decision again dismissing Coventry's application for review and affirming the Council's refusal of development approval for the fence: Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 83 (Tribunal's reasons). However, whereas, in the earlier determination, the Tribunal refused to approve the fence on visual amenity grounds, in the subsequent determination it did so on grounds of orderly and proper planning in terms of visual quality of development.
7 Although the Tribunal found, at [48] of the Tribunal's reasons, that the condition precedent to the application of cl 4.7.1 of TPS 23 is established, because 'the Tribunal is of the opinion that the amenity of Lennon Street is related to, and continues to significantly relate to, ''the architectural or physical character of existing buildings and the landscape''', it also determined that the fence satisfies the requirement of that provision that it 'enhance the amenity of the place, street or locality in question', because:
… the Tribunal finds that the Colorbond fence would enhance the Lennon Street streetscape by ameliorating the amenity impacts of the development on the site and enhance what would have been the contribution of the former chain mesh fence to the amenity of Lennon Street, prior to November 2011. …
(At [48] of the Tribunal's reasons).
8 However, for reasons which it gave at [58] [77] of the Tribunal's reasons (which are summarised below), the Tribunal determined that, having regard to orderly and proper planning, development approval should nevertheless be refused for the fence, because it found the fence to be of 'low quality urban design' (at [65] of the Tribunal's reasons) and, therefore, that it does not satisfy planning objectives concerning visual quality of development in the City Centre zone under TPS 23 and in two applicable nonstatutory strategic planning documents, namely the Morley City Centre Masterplan (Masterplan) and the Outline Development Plan (ODP) for Precinct 2A under TPS 23.
9 Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal '… upon a matter involving a question of law …' that was made in a proceeding under the PD Act by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Member Jordan is not a legally qualified member as defined in s 3(1) of the SAT Act.
10 In its current application for review by a judicial member, Coventry raises five grounds for review. Coventry contends that, in the determination the subject of this review, the Tribunal:
… has made errors of law by:
[Ground 1] [M]isinterpreting the provisions of the relevant strategic planning documents;
[Ground 2] [E]xercising discretion unreasonably in that the relevant strategic planning documents forming the basis for [the] decision have no relevance to the development in question;
[Ground 3] [F]ailing to apply the proper test for whether the development is generally in accordance with the Outline Development Plan for Precinct 2A;
[Ground 4] [F]ailing to take into account a relevant consideration; and
[Ground 5] [D]enying procedural fairness to [Coventry].
11 I will address each of these grounds for review in turn after summarising the Tribunal's reasons for its determination.
12 For reasons which I give below, I do not consider that the Tribunal erred in law in any of the five respects contended by Coventry.
Tribunal's reasons for determination
13 Having referred to the background to the matter, including the Tribunal's earlier determination and earlier reasons, the earlier review reasons and the parties' subsequent written submissions, the Tribunal referred to 'the issues' for its determination at [10] [15] of the Tribunal's reasons. At [11] of the Tribunal's reasons, the Tribunal stated the issues to be addressed in the review as the same issues identified in the Tribunal's earlier reasons, namely:
Whether retrospective planning approval should be granted for the 2.1 metre high 'sandstone' Colorbond fence having regard to:
i) orderly and proper planning and the public interest; and
ii) the impact on [sic of] the Colorbond fence on the amenity of the area.
14 At [14] [15] of the Tribunal's reasons, the Tribunal said the following:
14 Clause 3.8.1 of TPS 23 relevantly provides that when considering a development application:
The Council having regard to:
a) any matter which it is required by the Scheme to consider;
b) any submission received as a result of a referral or notification of a development application pursuant to Clause 3.7;
c) any relevant Policy made pursuant to this Scheme;
d) the requirements of orderly and proper planning;
e) the preservation of the amenity of the area; and
f) the provisions of Clause 4.4.1[,]
shall determine a development application within 30 days following the expiration of the advertising/submission period given under Clause 3.7.
15 The Tribunal considers it would be wrong in again determining this matter to conflate cl 3.8.1(d) and cl 3.8.1(e). This is because reaching a conclusion on the preservation of the amenity of an area does not mean that orderly and proper planning has therefore been satisfactorily addressed and need not be considered. There might be some overlapping elements of consideration, but these two items serve different purposes when considering a development application, as will be discussed below. The Tribunal remains of the view that the issues remain as originally listed, that is, orderly and proper planning, public interest and amenity.
15 I agree, for the reasons stated by the Tribunal at [15] of the Tribunal's reasons, that it would be 'wrong' (and indeed, would involve an error of law) to 'conflate' the considerations of 'the requirements of orderly and proper planning' (cl 3.8.1(d) of TPS 23) and 'the preservation of the amenity of the area' (cl 3.8.1(e) of TPS 23).
16 The Tribunal considered whether approval of the fence should be granted having regard to 'the preservation of the amenity of the area' at [16] [57] of the Tribunal's reasons. As there is no challenge to this part of the Tribunal's determination, it is unnecessary to summarise the Tribunal's careful and detailed reasons in relation to amenity. As noted earlier, although the Tribunal found, at [48] of the Tribunal's reasons, that the condition precedent to the application of cl 4.7.1 of TPS 23 is established, it also determined, at [54] of the Tribunal's reasons, that the fence is consistent with the requirement of that provision that 'any proposed development shall enhance the amenity of the place, street or locality in question'. The Tribunal also found, at [55] of the Tribunal's reasons, that:
… In light of the Tribunal's conclusion on cl 4.7.1 of TPS 23, the Tribunal is obliged to find that the fence would at least satisfy the requirement of cl 3.8.1(e) of TPS 23.
17 The Tribunal then proceeded to consider 'the requirements of orderly and proper planning' at [58] [77] of the Tribunal's reasons.
18 At [65] of the Tribunal's reasons, the Tribunal said that it remained of the opinion that it expressed in the Tribunal's earlier reasons at [72], that the fence is 'a long, high, straight, utilitarian structure and does not include a ''level of interest''', and therefore found that the fence is 'low quality urban design'.
19 In the course of its reasons in relation to orderly and proper planning, the Tribunal referred to and relied upon objectives of TPS 23 which emphasise the consideration and enhancement of urban design and visual quality in the Scheme Area in general and in the City Centre zone (which applies to the site) in particular. At [58] of the Tribunal's reasons, the Tribunal referred to cl 1.10 of TPS 23 which states that the objectives of the Scheme set out in that clause are '[f]or the purpose of promoting the orderly and proper planning, development and management of the Scheme Area …'. At [59] of the Tribunal's reasons, the Tribunal set out the general objective in cl 1.10.1(g) of TPS 23 which states as follows:
to provide an effective means of determining the urban design and visual quality of the Scheme Area[.]
(Emphasis added in Tribunal's reasons).
20 At [66] of the Tribunal's reasons, the Tribunal noted that 'the specific objectives for the City Centre zone include cl 1.10.2(l) of TPS [23]' which states as follows:
To create a visually attractive locality in the Scheme Area with appropriately scaled streetscapes and other elements, providing a diverse but unified urban townscape and landscape characterised by high quality urban design[.]
21 At [67] of the Tribunal's reasons, the Tribunal made the following key determination in relation to orderly and proper planning:
The Tribunal has found that there are no particular circumstances that would enable Lennon Street to be distinguished from the planning objectives of cl 1.10.1(g) and cl 1.10.2(l) of TPS 23. In light of the Tribunal's assessment of the fence, the Tribunal considers that these objectives would not be achieved by the development for the reasons that follow.
22 As part of its reasoning as to why it determined that the fence is not consistent with the planning objectives set out in cl 1.10.1(g) and cl 1.10.2(l) of TPS 23, the Tribunal referred to objectives and other provisions of the Masterplan and the ODP. At [68] of the Tribunal's reasons, the Tribunal said that the Masterplan 'can be described as indicative and aspirational' and set out the following stated purpose of the Masterplan:
The Morley City Centre Masterplan provides a guide to future development within the Morley City Centre. It provides the starting point for further strategic and design work such as community building, transport and infrastructure planning and upgrades, implementation strategies, environment and landscape planning, design guidelines and policies and streetscape enhancement.
The Masterplan provides a vision and context for individual projects in the City Centre. The success of the City Centre will ultimately depend on the delivery of great design in each of the projects.
23 At [69] of the Tribunal's reasons, the Tribunal observed that the Masterplan refers to 'critical urban design principles' and the need for 'a more attractive, active and cohesive built environment in the city centre'. The Tribunal also referred to the statement in the Masterplan that '[r]epairing the streets through careful design of the public and private interface will integrate and redefine the character of the Morley City Centre'.
24 At [71] of the Tribunal's reasons, the Tribunal noted that the Masterplan refers to a 'simple planning framework' that 'requires more detailed assessment of the functionality, impact and design quality of individual development proposals'. At [72] of the Tribunal's reasons, the Tribunal said that it was 'assisted', in this respect, by the ODP which has been adopted by the City for Precinct 2A comprising the site.
25 At [74] of the Tribunal's reasons, the Tribunal set out the following provision of the ODP:
This landscaping is also proposed to include a masonry/tilt-up screen wall to a height to a height of up to 2.0 metres, which will be designed with architectural articulation to provide a level of interest.
26 At [75] of the Tribunal's reasons, the Tribunal referred to cl 5.4.4(a) of TPS 23, which requires development to be 'generally in accordance with the approved Outline Development Plan … for the particular area …', and endorsed the following statement in relation to the term 'generally in accordance' in the Victorian planning decision of Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489 (Casey) at [9] [13]:
…
'Generally in accordance' does not require the proposed development to be identical to that described in the development or master plan; and it is appropriate to read the development or master plan as a whole when making this assessment. …
…
Rather, the question before us is whether the departures identified by the responsible authority are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the approved development plan[.]
27 The Tribunal then expressed the following finding in relation to the lack of consistency of the fence with the ODP at [76] of the Tribunal's reasons:
This Tribunal is of the opinion that the proposed fence along Lennon Street would be a significant departure from the ODP, because it is not a fence 'designed with architectural articulation to provide a level of interest.' The fence would not achieve this important objective of the ODP.
28 At [77] of the Tribunal's reasons, the Tribunal expressed the following determinative reasoning in relation to the development application for the fence:
As set out above, the Tribunal is of the opinion that the fence is a 'long, high, straight, utilitarian structure and does not include a ['']level of interest['']'. The Tribunal considers the fence to be low quality urban design and that it does not therefore satisfy the planning objectives for the City Centre zone as required by cl 1.10.1(g) and cl 1.10.2(l) of TPS 23. The Tribunal has concluded that therefore the fence would not be consistent with orderly and proper planning.
29 At [78] [80] of the Tribunal's reasons, the Tribunal addressed and rejected the City's submission that approval of the fence would be contrary to the 'public interest', finding, at [80], 'that an element of ''public interest'' has not been established in the circumstances of this matter and does not provide a basis for refusing the application'.
30 The Tribunal then summarised its findings in a 'Conclusion' at [81] [87] of the Tribunal's reasons. The final three paragraphs of the Tribunal's 'Conclusion' are as follows:
85 The Tribunal then had regard to the requirements of orderly and proper planning. The Tribunal weighed the development proposal against the planning objectives to be found in TPS 23 and the related non-statutory planning instruments. The Tribunal has concluded that the fence does not satisfy, in particular, the planning objectives of the Masterplan, the ODP and TPS [23] which lead to the requirement to assess the visual quality of the development.
86 The Tribunal concluded that the fence is 'a long, high, straight, utilitarian structure' and does not include a 'level of interest'. The Tribunal has found that the fence along Lennon Street and the walkway, was not consistent with orderly and proper planning, because the planning objectives of the planning framework would not be achieved.
87 The Tribunal has decided to dismiss the application because the fence would not be consistent with the requirements of the orderly and proper planning of the Morley City Centre.
Consideration of grounds for review
Ground 1 '[M]isinterpreting the provisions of the relevant strategic planning documents'
31 Coventry submits that the Tribunal erred in law in its reliance upon the Masterplan and the ODP, because these documents do not 'contain any specific content that would support a refusal of planning approval for the boundary fence' or that 'would justify the conclusion that granting planning approval for the boundary fence would be contrary to orderly and proper planning' and, indeed, 'those documents are not in any way concerned with development along Lennon Street.'
32 However, the provisions of the Masterplan and the ODP referred to by the Tribunal in its reasons are certainly relevant to the exercise of the Tribunal's planning discretion as to whether to approve the fence under TPS 23. Importantly, the provisions of the Masterplan and the ODP referred to by the Tribunal are consistent with the Scheme objectives in cl 1.10.1(g) and cl 1.10.2(l) of TPS 23, which were clearly the key provisions upon which the Tribunal expressed its findings in relation to orderly and proper planning. Furthermore, it was reasonably open to the Tribunal to have regard to the provisions of the Masterplan and the ODP that it referred to in its reasons in relation to the fence, either because they implicitly apply to structures, including fences, or, in the case of the provision of the ODP referred to at [74] of the Tribunal's reasons, specifically and expressly refer to 'a masonry/tiltup screen wall … which will be designed with architectural articulation to provide a level of interest'.
33 Furthermore, although the Masterplan and the ODP do not apply to residential properties on the opposite side of Lennon Street from the site, contrary to Coventry's submission it is not correct that 'those documents are not in any way concerned with development along Lennon Street'. Given that these documents are concerned with, among other things, urban design and visual quality of development on the site and given that this site has a significant frontage to Lennon Street, the strategic planning documents are indeed, in part, concerned with development along Lennon Street.
34 Finally, in relation to Ground 1, Coventry seeks to rely upon my reasoning at [32] of the earlier review reasons where I said the following:
Furthermore, although the Masterplan, the Amendment 6 Scheme Report and the ODP are strategic planning documents forming part of the planning framework, they are not, unlike TPS 23, statutory planning instruments. A provision of a statutory planning instrument (if applicable) generally occupies a more significant position in the planning framework than strategic planning documents. However, I do not accept the submission put by Coventry in its responsive submissions that the failure to satisfy the Council's planning intentions of enhancing local amenity as expressed in nonstatutory strategic planning documents cannot 'constitute a basis for refusal unless this intention is expressed in an applicable local planning scheme'. The nonstatutory planning documents also form part of the planning framework, although they are at a lesser level in the framework than a provision of a local planning scheme. Whether the provisions of nonstatutory strategic planning documents warrant the refusal of a particular development application involves the exercise of planning discretion which also requires an assessment of the development application in the context of the applicable statutory planning instrument or instruments.
35 This passage does not assist Coventry in relation to Ground 1. As I said at [32] of the earlier review reasons, a provision of a nonstatutory strategic planning document, such as the Masterplan or the ODP, is not only relevant in the exercise of planning discretion as to whether to grant development approval, because the strategic planning document forms part of the planning framework, but can potentially constitute a basis for refusal, even where the planning intention expressed in the strategic planning document is not expressed in the applicable local planning scheme. As I said, whether the provisions of the strategic planning documents 'warrant the refusal of a particular development application involves the exercise of planning discretion which also requires an assessment of the development application in the context of the applicable statutory planning instrument or instruments'.
36 The Tribunal's reasons for its determination clearly demonstrate that the Tribunal has properly and appropriately undertaken an exercise of planning discretion involving not only the nonstatutory strategic planning documents, but also an assessment of the development application in the context of the applicable statutory planning instrument, TPS 23. The Tribunal's assessment of orderly and proper planning in its reasons for the determination is consistent with my observations at [32] of the earlier review reasons and does not involve or disclose any error of law. (Indeed, not only did the Tribunal assess both the provisions of the applicable statutory planning instrument and the nonstatutory strategic planning documents in the exercise of planning discretion, as required in the reasoning at [32] of the earlier review reasons, but the Tribunal's careful and detailed analysis of the provisions indicates consistency between the Scheme objectives and the provisions of the Masterplan and the ODP in relation to consideration and enhancement of urban design and visual quality of development on the site).
37 The Tribunal did not err in law in respect of Ground 1.
Ground 2 '[E]xercising discretion unreasonably in that the relevant strategic planning documents forming the basis for [the] decision have no relevance to the development in question'
38 Coventry submits that:
To refuse planning approval for the boundary fence on the basis of strategic planning documents, namely the Morley City Centre Masterplan and the Outline Development Plan for Precinct 2A, in circumstances where those strategic planning documents do not contain any content of relevance to that decision, [demonstrates that the Tribunal] has made an unreasonable exercise of discretion that no reasonable decisionmaker [could] have made in the circumstances.
39 It appears that Coventry relies on socalled 'Wednesbury' unreasonableness, which terminology is derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). As Mason P held in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [27]:
The test [for Wednesbury unreasonableness] is stringent. … The decision must amount to an abuse of power (AttorneyGeneral (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh(1995) 183 CLR 273 at 290). …
40 Contrary to Coventry's submission, the Tribunal did not 'refuse planning approval for the boundary fence on the basis of [the] strategic planning documents'. Rather, the Tribunal refused development approval for the fence, because it found that approval of the fence would be contrary to orderly and proper planning, principally because of inconsistency with the planning objectives in cl 1.10.1(g) and cl 1.10.2(l) of TPS 23 and also because of inconsistency with the planning objectives and provisions of the Masterplan and the ODP referred to in the Tribunal's reasons (which, as noted earlier, are consistent with the relevant planning objectives of TPS 23).
41 The objectives and provisions of the Masterplan and the ODP referred to by the Tribunal were certainly relevant to the development in question. The Tribunal's determination was reasonably open in the exercise of planning discretion. The determination was plainly not 'manifestly unreasonable' in the Wednesbury sense.
42 The Tribunal did not err in law in respect of Ground 2.
Ground 3 '[F]ailing to apply the proper test for whether the development is generally in accordance with the Outline Development Plan for Precinct 2A'
43 Coventry submits that, although the Tribunal correctly referred, at [75] of the Tribunal's reasons, to the meaning of 'generally in accordance', the Tribunal's 'statement at [76] of the [Tribunal's reasons] departs from the required threshold [and] does not amount to a thorough and impartial assessment of the objectives, responses and plans comprising the Outline Development Plan for Precinct 2A.'
44 As noted earlier, the Tribunal expressed the following finding at [76] of the Tribunal's reasons:
This Tribunal is of the opinion that the proposed fence along Lennon Street would be a significant departure from the ODP, because it is not a fence 'designed with architectural articulation to provide a level of interest.' The fence would not achieve this important objective of the ODP.
45 As I held in Thomas and Town of Cambridge [2013] WASAT 206 at [5] and [23], in a review by a judicial member under s 244 of the PD Act, the reasons for determination of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in a overly critical or pernickety manner, and not concerned with looseness of language or phrasing. Read in this way, the Tribunal's statement at [76] of the Tribunal's reasons does not disclose any error of law. In the immediately preceding paragraph, the Tribunal endorsed the statement in Casey that the expression 'generally in accordance' with 'does not require the proposed development to be identical to that described in the development or master plan'. It was plainly implicit in the Tribunal's finding at [76] that 'the proposed fence along Lennon Street would be a significant departure from the ODP, because it is not a fence ''designed with architectural articulation to provide a level of interest''', that the Tribunal found that the fence is not 'generally in accordance with' the ODP.
46 Furthermore, although the Tribunal did not refer to other provisions of the ODP, the provision of the ODP that it referred to at [74] of the Tribunal's reasons was obviously material in relation to the exercise of planning discretion, given that it specifically refers to the inclusion of 'a masonry/tiltup screen wall … which will be designed with architectural articulation to provide a level of interest' on the site. Although Coventry refers in its submissions in general terms to 'objectives, responses and plans' comprising the ODP, it has not identified any other particular provision or aspect of the ODP which might qualify or otherwise affect the significance of the ODP provision set out by the Tribunal at [74] of the Tribunal's reasons or which the Tribunal should have considered in determining whether the fence is generally in accordance with the ODP.
47 Finally, the finding in relation to 'a significant departure from the ODP' (at [76] of the Tribunal's reasons) was but one finding made by the Tribunal in a wider discussion and determination that the fence is inconsistent with planning objectives in the statutory and nonstatutory planning framework and, therefore, that approval of the fence is inconsistent with orderly and proper planning.
48 The Tribunal did not err in law in respect of Ground 3.
Ground 4 '[F]ailing to take into account a relevant consideration'
49 Coventry submits that the Tribunal erred in law in the determination by failing to have regard to a relevant consideration, namely the City of Bayswater Fencing and Flooding Local Law (Fencing Local Law), although the Fencing Local Law was referred to in the evidence of the expert town planning witness called by Coventry and was also referred to in the Tribunal's earlier reasons. Coventry submits that:
Although it was created under the Local Government Act 1995 (WA) as opposed to the PD Act, the Fencing Local Law is for all intents and purposes in the nature of a town planning policy in its content (it is worth noting that the Fencing Local Law was made prior to the gazettal of the PD Act).
50 As McLure JA, with whom Steytler P and Pullin JA agreed, held in Re Shire of Mundaring; Ex parte Solomon & Ors [2007] WASCA 132 at [41]:
A relevant consideration is one which the decision-maker is expressly or impliedly obliged to take into account in the course of reaching the decision under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The relevant legislation may specify the particular matters which are to be considered or the obligation may arise by implication from the subject matter, scope and purpose of the legislation. …
51 In my view, the Tribunal was not expressly or impliedly obliged to take into account the Fencing Local Law or its provisions in making the determination. Clause 3.8.1 of TPS 23 prescribes matters that the Council (and the Tribunal on review) must have regard to. The prescribed matters include:
…
c) any relevant Policy made pursuant to this Scheme; [and]
d) the requirements of orderly and proper planning[.]
52 The Council (and the Tribunal on review) is not obliged to take into account the Fencing Local Law or its provisions as a 'relevant Policy made pursuant to this Scheme' or as part of 'the requirements of orderly and proper planning' (or under any other express head of consideration in the Scheme). Contrary to Coventry's submission, the Fencing Local Law is not 'for all intents and purposes in the nature of a town planning policy in its content'. Although Mr Simon Wilkes, the expert town planning witness called by Coventry, referred to the Fencing Local Law in his evidence, he also gave evidence that:
At this time, the [City] does not have a specific local planning policy in respect of fencing. (Exhibit 13, paragraph [51])
- In the joint statement of expert witnesses relating to matters of town planning, landscape architecture and urban design prepared by Mr Wilkes, Mr Julian Croudace, a landscape architect called by Coventry, and Ms Helen Smith, a town planner called by the City, the expert witnesses agreed that '[t]here is no adopted policy under TPS 23 relating to fencing[.]'
53 Furthermore, the Fencing Local Law concerns and regulates a different type of regulatory approval than development approval under TPS 23. The Fencing Local Law concerns and regulates approval for the erection or maintenance of fences under the Local Government Act 1995 (WA) (LG Act) by building surveyors of the City. In this regard, cl 5 of the Fencing Local Law states that:
A person shall not, without the written consent of the Building Surveyor, erect, commence to erect or maintain a fence in a Commercial Area or an Industrial Area other than in accordance with the specifications contained in the 2nd Schedule.
54 In contrast, the source of the obligation to obtain development approval for the fence the subject of this proceeding is cl 3.4 and cl 3.5(k) of TPS 23. Clause 3.4 of TPS 23 states as follows:
The Council's approval to commence development ('development approval') is required for any development on land within or partly within the Scheme Area, and no person shall commence any development unless the Council's approval has first been obtained.
55 Although cl 3.5 of TPS 23 prescribes 'development that does not require the planning approval of local government' and includes in paragraph (k) '[t]he erection on a lot of a boundary fence', paragraph (k) expressly excludes from this exemption 'boundary fences adjoining or facing a public street or public space.' The fence the subject of this proceeding is a boundary fence adjoining or facing a public street or public space and, therefore, requires development approval under cl 3.4 and cl 3.5(k) of TPS 23.
56 Although, as Coventry submits, cl 7 of the Fencing Local Law concerns 'fencing materials', it does so in the context of the regulation of the erection or maintenance of fences under the LG Act, not in the context of the regulation of development under the PD Act. Indeed, in addition to the entirely different statutory context, the concluding words of cl 7 of the Fencing Local Law in themselves make plain that the scope of that provision and the Fencing Local Law generally is limited to the regulation of the erection or maintenance of fences under the LG Act. Clause 7 of the Fencing Local Law states as follows:
A person shall not construct a fence in a Residential Area, a Commercial Area or an Industrial Area from other than brick, stone, concrete, wrought iron, tubular steel, link mesh, timber, plastic coated or galvanised link mesh, corrugated fibre reinforced cement sheeting, colour bonded metal or a material approved by the Building Surveyor. (Emphasis added)
57 The fact that the Fencing Local Law was made prior to the commencement of the PD Act is irrelevant; the Fencing Local Law came into being well after the commencement of modern town planning law in Western Australia in terms of the Town Planning and Development Act 1928 (WA) on 1 November 1929 and, more particularly, although TPS 23 commenced on 28 April 2000, about two years and nine months after the Fencing Local Law commenced on 22 July 1997, TPS 23 revoked and replaced the City of Bayswater District Planning Scheme No 21 which was gazetted on 16 September 1988.
58 Finally, in relation to Ground 4, Coventry submits, referring in particular to clause 13(2)(c) and (d) of the Fencing Local Law, that the Fencing Local Law 'is a document that has been brought into existence by the [City] to guide the orderly development of fencing within its municipality' and 'to guide orderly and proper planning of fence construction' and is therefore a relevant consideration in the exercise of planning discretion as to whether to grant development approval for a fence under TPS 23. This submission is misconceived. Clause 13 of the Fencing Local Law is in the following terms:
(1) The Local Government may consent to the erection or maintenance of a fence which does not comply with the requirements of these Local Laws.
(2) In determining whether to grant its consent for the erection or maintenance of any fence, the Local Government may consider, in addition to any other matter that it is authorised to consider, whether the erection or retention of the fence would have an adverse effect on:
(a) the safe or convenient use of any other land;
(b) the safety or convenience of any person;
(c) the orderly and proper planning of the locality; or
(d) the amenity of the locality.
60 The Tribunal did not err in law in respect of Ground 4.
Ground 5 '[D]enying procedural fairness to [Coventry]'
61 Section 32(1) of the SAT Act states as follows:
The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
62 Coventry submits that, in determining that 'the fence [is of] low quality urban design and that it does not therefore satisfy the planning objectives for the City Centre zone as required by cl 1.10.1(g) and 1.10.2(l) of TPS 23' (at [77] of the Tribunal's reasons), the Tribunal denied procedural fairness to Coventry in terms of the socalled 'hearing rule' of natural justice. In particular, Coventry submits that it was denied procedural fairness, because cl 1.10.1(g) and cl 1.10.2(l) of TPS 23 'were not the subject of any substantive submissions, questioning or witness evidence at the final hearing', the Tribunal did not indicate during the final hearing 'that the application for review could potentially be dismissed' on the basis of those clauses, and Coventry was not invited by the Tribunal 'to comment on the meaning' of those clauses and 'how they apply in the context of the development in question'. Coventry also submits that it was denied procedural fairness, because the application for review was dismissed in the Tribunal's earlier reasons exclusively on amenity grounds, the earlier determination was vitiated by legal error and was revoked, and, in drafting written submissions following the earlier review reasons, Coventry 'confined its arguments to the amenity considerations and without any indication whatsoever that [the Tribunal] was minded to refuse the application for review in the [determination] based solely on clauses 1.10.1(g) and 1.10.[2](l) of the Scheme.'
63 In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; (1994) 34 ALD 324; (1994) 127 ALR 699, the Full Federal Court held at [30]; 591 592; 330; 715 as follows:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submission to the decisionmaker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decisionmaker. It also extends to require the decisionmaker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decisionmaker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decisionmaker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. …
64 The PD Act does not authorise a departure from the rules of natural justice. However, in my view, the Tribunal did not deny procedural fairness to Coventry in making the determination under review.
65 The general objectives of the Scheme, including cl 1.10.1(g), and the specific objectives of the Scheme, including cl 1.10.2(l), were the subject of evidence and submissions at the hearing on 28 and 29 August 2013. The City's statement of issues, facts and contentions refers to cl 1.10.2(l) (at paragraph 15) and to the requirement in cl 4.4.1 of the Scheme for nonresidential development to comply with the objects of the Scheme (at paragraph 16). Mr Wilkes, the town planning expert witness called by Coventry, set out the general objectives and the specific objectives of TPS 23 at paragraphs 26 and 27 of his witness statement. Ms Smith's witness statement (at paragraph 64) and the joint statement of expert witnesses (at paragraph 5.5.4) also both referred to the objective of the Scheme 'to create a visually attractive locality in the Scheme Area with appropriately scaled streetscapes and other elements, providing a diverse but unified urban townscape and landscape characterised by high quality urban design'.
66 The City's submissions at the hearing were also directed to the Scheme objectives and, in particular, the consideration and promotion of high quality urban design and visual quality. The closing submission for the City included the following:
Ms Smith explains in her witness statement, some of this background. The whole reason for being the raison d'etre of TPS 23 and the masterplan, is to facilitate the rejuvenation of the city centre, so as to facilitate and develop a functional urban centre, characterised by high quality urban design. So I say, the masterplan reinforces and elaborates those same themes. And none of this is controversial. The joint statement of the planners and Mr Croudace, in that document, they agree first, that the Morley City Centre masterplan provides context for individual projects in the city centre will depend on the delivery of high quality urban design, in current and future developments.
The masterplan emphasises the need for the enhancement of streetscapes and high quality urban design and the scheme objectives of TPS 23 include, to create a visually attractive locality in the scheme area, with appropriately scaled streetscapes and other elements providing a diverse but unified townscape and landscape, characterised by high quality urban design. And that's from clause 1.10 I think it's Legal I beg your pardon 1.10.2(l) of the scheme. And those are the specific objectives.
…
All of this provides the context within which the application for the COLORBOND fence along the Lennon Street boundary of the site falls to be considered. Planning framework demands high quality urban design, recognises the Coventry Square site as an important catalyst for future redevelopment. The applicant has promoted its development as iconic and of a high quality built form, an outcome that will set the benchmark for future development in the centre. City's contention is that that the boundary fencing must be consistent with that planning framework which calls for that high quality urban design and, expressly, the improvement of streetscapes. It must represent a suitable benchmark for other developments which follow.
We say that a COLORBOND fence for a length of 235 metres along a residential interface and which is readily viewable from Wellington Street manifestly does not achieve that objective. What it does to is to continue and reinforce an existing underwhelming and undesirable level of design and visual amenity. It picks up what we say is perhaps the worst aspect of the Lennon Street residential streetscape that is, what we would describe as an intrusive COLORBOND fence, and emphatically extends that to produce and extensive an unattractive blank façade virtually unscreened by the existed verge trees. From the view on Wellington Street a street which the applicant accepts is a strategic street and importantly from a visual important, rather, from a visual perspective, it again perpetuates the very thing the planning framework insists on improving. It perpetuates a poor streetscape, low quality materials and low quality design.
(T:215.8216.2 and 217.1217.7; 29.08.13) (Emphasis added)
67 Given that the relevant Scheme objectives were referred to in the town planning evidence of both parties and was a key matter in the City's submissions to the Tribunal for refusal of the fence, and given that the Tribunal was bound by cl 3.8.1(a) of TPS 23 to have regard to 'any matter which it is required by the Scheme to consider', including the Scheme objectives, the Tribunal did not deny procedural fairness to Coventry in determining that the fence warrants refusal in consequence of its inconsistency with the planning objectives in cl 1.10.1(g) and cl 1.10.2(l) of TPS 23 (and in other parts of the planning framework referred to by the Tribunal). Furthermore, given that the objectives of the Scheme were referred to in the planning evidence and were argued by the City in its submissions, the Tribunal was not relevantly required to indicate to Coventry that the application for review could potentially be dismissed on the basis of those provisions or to invite comment on the meaning of the provisions or how they apply in the context of the development in question.
68 Finally, as the Tribunal correctly recognised at [10] of the Tribunal's reasons, in the earlier review reasons I determined that the Tribunal's legal error vitiated the entirety of its determination, which was therefore 'revoked', and the entirety of the application for review was remitted to the Tribunal as originally constituted 'for determination in accordance with law'. The determination by the Tribunal was therefore not restricted to the issue of amenity. Given that the Scheme objectives were referred to in the evidence of the town planning witnesses, were a significant matter in the City's case for refusal of the fence, and were matters that the Tribunal was bound to have regard to, there was no denial of procedural fairness to Coventry in the Tribunal's determination.
69 The Tribunal did not err in law in respect of Ground 5.
Conclusion
70 The Tribunal did not err in law in any of the respects contended by Coventry. The application for review by a judicial member should therefore be dismissed and the determination of the Tribunal should be affirmed.
Orders
71 The Tribunal makes the following orders:
1. The application for review by a judicial member is dismissed.
2. The determination of the Tribunal made on 3 July 2014 in DR 275 of 2012 is affirmed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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