| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : COVENTRY SQUARE WA PTY LTD and CITY OF BAYSWATER [2014] WASAT 7 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 17 JANUARY 2014 FILE NO/S : DR 436 of 2013 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 refused to approve fence, in part, because it 'does not satisfy the planning objective of maintaining or enhancing the visual amenity of [the street]' Whether Tribunal erred in law in determining that fence does not satisfy planning objective of enhancing visual amenity Whether Tribunal failed to consider and determine whether condition precedent to application of local planning scheme provision in relation to enhancement of amenity was satisfied Whether Tribunal misdirected itself in relation to local planning scheme provision Legislation: City of Bayswater Town Planning Scheme No. 23, cl 1.10.2, cl 4.7.1
Planning and Development Act 2005 (WA), s 244, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 3(1) Result: Tribunal's determination revoked
Matter remitted to Tribunal as originally constituted for determination in accordance with law
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 by 245 metre long Colorbond sheetmetal boundary fence. The Tribunal did so, in part, because it concluded that the fence 'does not satisfy the planning objective of ... enhancing the visual amenity' of the street.
The judicial member determined that the Tribunal erred in law in that it failed to consider and determine whether a condition precedent to the application of a local planning scheme provision requiring that 'the appearance of any proposed development shall enhance the amenity of the place, street or locality in question' was satisfied, and misdirected itself in relation to the meaning and effect of that provision.
The Tribunal's determination was therefore revoked and the matter was remitted to the Tribunal as originally constituted for determination in accordance with law.
Category: B
Representation: Counsel:
Applicant : Mr PJ McQueen
Respondent : Mr CA Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 183
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Thomas and Town of Cambridge [2013] WASAT 206
REASONS FOR DECISION:
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 the 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 (reasons). 3 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. 4 In its application for review by a judicial member, Coventry raises the following two grounds of review: 1. The learned Member made an error of law in holding that a development can only be approved under the City of Bayswater Town Planning Scheme No 23 (TPS 23) in circumstances where the development 'enhances' the amenity of the place, street or locality in question. 2. To the extent that the enhancement of amenity was a relevant consideration in the circumstances (and the Applicant submits that it was not), the learned Member made an error of law by failing to consider the difference between the existing amenity (prior to the development) and the present amenity (subsequent to the development). 5 As was recently observed 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 an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. 6 However, in my view, for reasons given below, the Tribunal fell into legal error in a manner argued in effect by Coventry in the context of Ground 1, in that the Tribunal failed to consider whether a condition precedent to the application of a local planning scheme provision requiring that 'the appearance of any proposed development shall enhance the amenity of the place, street or locality in question' was satisfied, and misdirected itself in relation to the meaning and effect of that provision.
Tribunal's reasons for determination 7 In its reasons, after providing an introduction and setting out the background to the proceeding, the Tribunal outlined the applicable planning framework for the review at [13] - [23]. At [13] of the reasons, the Tribunal noted that the site is within the Scheme Area of the City of Bayswater Town Planning Scheme No 23 Morley City Centre Scheme (TPS 23 or Scheme). At [14] of the reasons, the Tribunal referred to specific objectives of TPS 23 set out in cl 1.10.2 of the Scheme which include: 8 At [17] of the reasons, the Tribunal said the following: Part 4 of TPS 23 includes various provisions including: 4.4.1 In determining a development application that includes nonresidential development the Council shall have regard to … … i) the height, position, form and materials of fences and walls[.] … 4.7.1 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. … 4.7.3 All land and buildings shall be so used and maintained as to preserve the amenity of the Precinct in which they are situated[.] 9 At [18] of the reasons, the Tribunal noted that, in October 2010, the City adopted the Morley City Centre Masterplan (Masterplan) for an area which includes this site and that the Masterplan states that it 'provides the starting point for further strategic and design work such as … streetscape enhancement'. The Tribunal also noted that the Masterplan states that: 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. 10 At [19] of the reasons, the Tribunal noted that the Masterplan 'emphasises the need for "a more attractive, active and cohesive built environment in the City centre"' and states 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'. 11 At [20] of the reasons, the Tribunal noted that, in conjunction with Amendment No 6 to TPS 23, consultants for Coventry prepared the Amendment 6 Scheme Report which referred to the preparation of an Outline Development Plan (ODP) for Precinct 2A (which includes the site). The Tribunal also noted that the Amendment 6 Scheme Report said the following: In addition to the extensive conversion of the existing warehouse structure on the site, the ODP also includes details which indicate how the development will be buffered from nearby residential development along Lennon Street, through the use of masonry walls and extensive landscaping of the adjacent road verge areas in particular[.] 12 At [21] of the reasons, the Tribunal referred to the statement in the ODP that the landscaping at the boundary of the site on Lennon Street 'is also proposed to include a masonry/tiltup screen wall to a height of up to 2.0 metres, which will be designed with architectural articulation to provide a level of interest'. 13 Having referred to this planning framework, at [24] of the reasons, the Tribunal articulated the following issue for determination in the proceeding: 14 The Tribunal then provided a 'discussion' of these issues. The Tribunal discussed 'Orderly and properly planning and the public interest' at [25] [49] of the reasons. At [30] of the reasons, the Tribunal said the following: … Clause 4.7.1 of TPS 23 requires that the appearance of any proposed development shall enhance the amenity of the place, street or locality in question. … 15 The Tribunal concluded its discussion of 'Orderly and proper planning and the public interest' at [49] of the reasons as follows: The Tribunal has found that to be consistent with orderly and proper planning, it is necessary that the Colorbond fence have an acceptable impact on the amenity of the locality, particularly of Lennon Street, and also to satisfy the amenity objectives for Precinct 2A and the Morley City Centre found in TPS 23 and related planning documents. This is discussed further below. 16 The Tribunal then discussed 'The Colorbond fence and the amenity of the area' at [50] [73] of the reasons. In particular, the Tribunal summarised the competing expert town planning and landscape evidence called by the parties and competing submissions presented by the parties at [50] [69] of the reasons. After referring to evidence of a town planner called by the City that 'a physical barrier between residential and commercial uses along Lennon Street was required to address the expectations of residents that their amenity would be protected from noise and commercial activity', the Tribunal said at [50]: … There was no evidence presented as to how the residents' expectation had been expressed, but TPS 23 requires consideration of streetscape and enhancement of local amenity. 17 At [52] of the reasons, the Tribunal referred to the three part test for assessing the impact on amenity stated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) in conventional terms as follows: 18 At [56] of the reasons, the Tribunal found that the fence provides a visual barrier to a view of the carpark and prevents light spill from the site for residents on the northern side of Lennon Street. At [57] of the reasons, the Tribunal found that the fence provides a sufficient noise barrier for the current use of the site. However, at [58] of the reasons, the Tribunal said the following: Amenity also includes visual amenity. This ties in with the need to address, having regard to the planning instruments, the streetscape consequences of the development. 19 The Tribunal concluded its discussion in relation to 'The Colorbond fence and the amenity of the area' at [69] [73] of the reasons by making the following determinative findings: 69 The respondent also referred to what was described as the adverse impact of the Colorbond fence on the view from Wellington Road. The Tribunal has found that the Colorbond fence is acceptable from along this street. This is because the view is framed to the south by the Colorbond clad market building, to the west by an approved Colorbond fence on the boundary with the car dealership and to the north by the Colorbond fence in contention. The view to the fence is interrupted by cars parked in the 750 bay carpark. 70 The Tribunal has found that a Colorbond fence would, at worst, make a neutral contribution to the amenity of the walkway between Lennon Street and Wellington Road. This is because the walkway is bounded on the northern side by an asbestos fibre side fence of a house and a chain mesh with barbed wire top fence of a now empty former child care centre. 71 Critical to the determination of this matter, however, is the suitability of 2.1 metre high sheet metal Colorbond material as a fence for the 170 metres of the site boundary frontage to Lennon Street. This boundary might be the 'rear' of the site relative to the view toward the market development from Walter Road West, but it fronts onto, and is a significant streetscape element, on Lennon Street. 72 The Tribunal accepts that fencing materials on the north side of Lennon Street include Colorbond, but significantly there is a mixture of materials and open front yards. The Tribunal appreciated that there is a tension between having a barrier to protect the houses of Lennon Street from the amenity impacts of the use of the site and enhancing the streetscape. The fence on the site boundary will be partly obscured by vegetation and does reduce adverse amenity impacts from the site. The Tribunal has found, however, that the Colorbond fence is a long, high, straight, utilitarian structure and does not include a 'level of interest'. The Tribunal has concluded that the Colorbond fence does not satisfy the planning objective of maintaining or enhancing the visual amenity of Lennon Street. 73 Orderly and proper planning also requires an assessment of the contribution new development makes to the amenity objectives for the Morley City Centre. The Masterplan, Amendment 6 Scheme Report and the ODP all have, as intent, the enhancement of the amenity of the Morley City Centre and the use of design and materials to achieve this. The visual impact of the Colorbond fence along this road frontage at a location at the interface of two different precincts in the Morley City Centre is relevant to making this assessment. The Tribunal has found that the objectives of incremental enhancement of streetscapes in the Morley City Centre would not be achieved by long lengths of high, unrelieved Colorbond fencing along street boundaries. This is considered to include Lennon Street because the Tribunal has found that there are no particular circumstances that would enable the proposed Colorbond fence in this location to be distinguished from this planning objective. (Emphasis added). 20 The Tribunal then expressed the following 'Conclusion' at [74]: The Tribunal decided to dismiss the application because the Colorbond fence would be inconsistent with orderly and proper planning. This is because the Colorbond fence along this boundary of the site does not satisfy the amenity objectives of the planning instruments prepared for this locality and the Morley City Centre.
Did the Tribunal err in law in its determination that the fence does not satisfy the planning objective of enhancing the visual amenity of the street? 21 As noted earlier, in its first ground of review, Coventry contends that the Tribunal erred in law 'in holding that a development can only be approved under [TPS 23] in circumstances where the development "enhances" the amenity of the place, street or locality in question'. However, as the City submits, as framed, this ground is misconceived, because the Tribunal did not determine that a development can only be approved under TPS 23 in circumstances where it 'enhances' the amenity of the place, street or locality in question. Rather, it is apparent from the Tribunal's reasons, including in particular at [72], that it refused to grant development approval for the fence, in part, because it found that it 'does not satisfy the planning objective of maintaining or enhancing the visual amenity of Lennon Street' (emphasis added). 22 However, in my view, in making this determination, the Tribunal erred in law in a manner argued in effect by Coventry in its submissions in relation to Ground 1. 23 As noted, earlier, in the course of outlining the planning framework applicable to the review, at [17] of the reasons, the Tribunal set out the terms of cl 4.7.1 of TPS 23 as follows: 4.7.1 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. 24 In its submissions in relation to Ground 1, Coventry submits, as follows: Critically, in clause 4.7.1 of TPS 23, the requirement that development must enhance existing amenity only arises in circumstances where the amenity of a place, street or locality relates significantly to the architectural or physical character of existing buildings or the landscape. In circumstances where the amenity of a place, street or locality does not relate significantly to the architectural or physical character of existing buildings or the landscape, then an application for development approval cannot be refused under TPS 23 for merely having failed to enhance existing amenity. In the judgment, the learned Member does not make any finding as to whether the existing amenity of Lennon Street (prior to the development being carried out) related significantly to the architectural or physical character of existing buildings or the landscape of Lennon Street. The learned Member in fact states (at [30] of the judgment) that: Clause 4.7.1 of TPS 23 requires that the appearance of anyproposed development (emphasis added) shall enhance the amenity of the place, street or locality in question. The learned Member ultimately relied on this particular reading of clause 4.7.1 of TPS 23 in making the conclusions between paragraphs [72] and [74] of the judgment. By considering whether the development enhances the existing amenity of Lennon Street, without first making a finding that the existing amenity of Lennon Street related significantly to the architectural or physical character of existing buildings or the landscape of Lennon Street, the learned Member has, with respect, made an error of law. 25 In these submissions, Coventry contends, in effect, that the Tribunal erred in law in either or both of two respects in its determination that the fence does not satisfy the planning objective of enhancing the visual amenity of Lennon Street, namely: 26 In my view, reading the Tribunal's reasons in the manner and context referred to at [5] above, the reasons reveal that the Tribunal erred in law in each of these respects. 27 Although the Tribunal set out the whole of cl 4.7.1 of TPS 23 at [17] of the reasons, including the condition precedent to the application of the requirement that the appearance of any proposed development 'shall enhance the amenity of the place, street or locality in question', it did not, in its reasons, address the condition precedent to the application of this requirement 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'. Other than in the quotation at [17] of the reasons, the Tribunal did not refer to the condition precedent at all in the reasons. The reasons do not contain any assessment or analysis of whether the condition precedent is satisfied. 28 Although the Tribunal did not make a specific finding in the reasons that cl 4.7.1 of TPS 23 relevantly requires that the appearance of the fence shall enhance the amenity of the place, street or locality in question, having observed at [30] of the reasons that this clause 'requires that the appearance of any proposed development shall enhance the amenity of the place, street or locality in question' and having observed at [50] of the reasons that '… TPS 23 requires consideration of streetscape and enhancement of local amenity', in concluding at [72] of the reasons that 'the Colorbond fence does not satisfy the planning objective of maintaining or enhancing the visual amenity of Lennon Street' (emphasis added), the Tribunal implicitly determined that cl 4.7.1 of TPS 23 applied and warranted, in part at least, refusal of the development application. In making this determination, without having considered and determined that the condition precedent in cl 4.7.1 was satisfied, the Tribunal erred in law in a material respect. 29 It also appears from the Tribunal's statements at [30] and [50] of the reasons quoted in the preceding paragraph that it misdirected itself as to the meaning and effect of cl 4.7.1 of TPS 23. That clause does not require that the appearance of any proposed development shall enhance the amenity of the place, street or locality in question unless the Council (or the Tribunal on review) is 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. The Tribunal's misdirection in relation to cl 4.7.1 of TPS 23 also involved a material error of law. 30 The City submits that the Tribunal's reasons show that it had regard to the planning framework including not only TPS 23, but also the Masterplan, the Amendment 6 Scheme Report and the ODP, and that it 'determined that within that framework the [C]olorbond fence does not satisfy the planning intention which underpins the applicable amenity objectives'. The City submits that there was 'no error of law involved in carrying out that analysis' and that 'the Tribunal had before it ample evidence to conclude that one of the amenity objectives of the planning framework is to enhance the amenity of the Morley City Centre'. 31 However, none of the objectives of TPS 23 which were referred to by the Tribunal in its reasons or by the City in its submissions refer to 'enhancing' or to the 'enhancement' of the amenity of the place, street or locality, as does cl 4.7.1 of TPS 23. Furthermore, although it is correct that the Tribunal referred in the reasons, in particular at [73], to the Masterplan, the Amendment 6 Scheme Report and the ODP, which refer to the 'enhancement' of the amenity of the streetscape and of the Morley City Centre in general, it is evident from paragraph [72] of the reasons that the Tribunal refused to grant development approval for the fence, in part at least, on the basis of cl 4.7.1 of TPS 23. 32 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. 33 Finally, it is unknown whether the Tribunal would have refused to grant development approval for the fence having regard to the nonstatutory strategic planning documents had it considered and determined that the condition precedent to the application of cl 4.7.1 of TPS 23 was not established. Particularly given the role and status of statutory planning instruments in the exercise of planning discretion, it cannot be assumed that the Tribunal would have refused to grant development approval for the fence had it determined that cl 4.7.1 of TPS 23 does not relevantly require that the fence enhance the amenity of the place, street or locality. 34 Therefore, although it is correct, as the City submits, that it is apparent from the Tribunal's reasons that it had regard to a range of provisions within the planning framework in determining to refuse to grant development approval for the fence, it cannot be concluded that the Tribunal's errors were not 'material or fundamental to the outcome of the review'. In my view, given the role and significance of cl 4.7.1 of TPS 23 in the determination of the development application, the Tribunal's errors were of a sufficiently material character to vitiate the entirety of the determination.
Did the Tribunal err in law in the consideration of amenity? 35 Coventry submits that the Tribunal failed 'to properly consider enhancement [of amenity] through a before and after analysis'. However, as noted earlier, at [52] of the reasons, the Tribunal referred to the conventional test for the assessment of impact on amenity set out in Tempora. In the course of its reasons, the Tribunal, in substance, approached the assessment of amenity on the basis of the three part test in Tempora. As the City submits, the Tribunal was not required to set out a detailed 'before and after' analysis of amenity in the manner suggested by Coventry. In any case, this ground involves, in substance, a challenge to a finding of fact, and does not involve any question of law.
Conclusion 36 The Tribunal erred in law in its determination as, in substance, alleged by Coventry in this review, in that it failed to consider and determine whether the condition precedent to the application of cl 4.7.1 of TPS 23 was satisfied in the circumstances of the case and misdirected itself as to the meaning and effect of that provision. These errors of law are of a sufficiently material character in the circumstances of the case that they vitiate the entirety of the Tribunal's determination. 37 The matter should be remitted to the Tribunal as originally constituted for determination in accordance with law. The parties should have the opportunity to file any further submissions before the Tribunal determines the application for review.
Orders 38 I therefore make 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 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. |