COVENTRY SQUARE WA PTY LTD and CITY OF BAYSWATER - [2013] WASAT 183

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: COVENTRY SQUARE WA PTY LTD and CITY OF BAYSWATER [2013] WASAT 183

MEMBER: MR J JORDAN (MEMBER)

HEARD: 28 AND 29 AUGUST 2013

DELIVERED : 13 NOVEMBER 2013

FILE NO/S: DR 275 of 2012

BETWEEN: COVENTRY SQUARE WA PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning Development Refusal of application for retrospective planning approval Colorbond sheetmetal boundary fence 2.1 metres high Fence along site boundary frontage to Lennon Street and public accessway Fence screens parking area at development site from houses on opposite side of Lennon Street Site contains 2,600m² former industrial building developed as markets and restaurants Site and houses opposite both within Morley City Centre Separate town planning scheme for Morley City Centre Outline Development Plan Objectives for City Centre Proposed fence in contrast to previous approval conditions for the fence Relevance of previous undertakings by applicant Impact of Colorbond fence on streetscape and local amenity Achieving amenity objectives of planning instruments Orderly and proper planning

Legislation:

City of Bayswater Town Planning Scheme No 23, cl 1.2, cl 1.10.1, cl 1.10.2, cl 4.4.1(i), cl 4.7.1, cl 4.7.3, cl 5.4.4(a), cl 5.5, cl 5.6, Pt 4
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 252(1)

Result:

Application for review dismissed
Refusal of the development affirmed

Summary of Tribunal's decision:

This matter involved an application for retrospective planning approval for a 2.1 metre high fence of sheetmetal, referred to as Colorbond, along the 245 metre long northern boundary of a site in the Morley City Centre. The boundary had a 170 metre frontage on Lennon Street and a 75 metre frontage to a pedestrian walkway.
The City of Bayswater Town Planning Scheme No 23 and related planning documents prepared to guide development in the Morley City Centre required a fence to be erected on the boundary to protect the houses in Lennon Street from the amenity impacts of the market development on the site. The planning documents also required that there be no adverse impact from the fence on the streetscape and amenity of Lennon Street and that the fence contribute to the amenity improvements planned for the Morley City Centre.
The Tribunal found, that while the Colorbond fence acted as a suitable buffer between the activities of markets and the houses, it did not satisfy visual amenity standards for the immediate locality of Lennon Street or the amenity objectives for the Morley City Centre.
The Tribunal dismissed the application for review and upheld the refusal of the application for development of the Colorbond fence.

Category: B

Representation:

Counsel:

Applicant: Mr PJ McQueen and Mr MA McGlue
Respondent: Mr CA Slarke

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods Barristers & Solicitors

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

Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111
Rohrlach v City of Unley (2011) SAERDC 19
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Teoh and City of Stirling [2008] WASAT 55
Undervan Holdings Pty Ltd and Western Australian Planning Commission [2012] WASAT 49

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application by Coventry Square WA Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the City of Bayswater (respondent, City or Council) to grant retrospective planning approval for a 2.1 metre high cream or 'sandstone' coloured sheetmetal fence built along the 245 metre long northwestern boundary of No 243 253 Walter Road West, Morley (site). This style of fencing is generally referred to by the proprietary name Colorbond.
The site has an area of 4.66 hectares. The boundary along which the Colorbond fence is erected has frontage of 170 metres to Lennon Street, and 75 metres to a pedestrian accessway between Lennon Street and Wellington Road which abuts the eastern boundary of the site. At the western side, the site has a common boundary with a car dealership, which also has frontage to Walter Road West and, at the rear, Lennon Street, as well as Russell Street to the west.
On 28 August 2013, the Tribunal conducted a view of the fence in dispute, development on the site and on neighbouring lots and of the surrounding streets including, Lennon Street, Wellington Road, Walter Road West and Russell Street. The Tribunal was accompanied by counsel for each of the parties and some of the witnesses called in the matter. The respondent's witnesses present were Ms Helen Smith, Town Planner, and Mr Josko Gomboc, Manager of Building Services, who are both employees of the City of Bayswater. The applicant's witnesses were consultants, Mr Simon Wilkes, Town Planner and Mr Julian Croudace, Landscape Architect and Mr Michael Holtham as a director of the applicant company.
The northern side of Lennon Street comprises single storey houses. Five houses in the street have no fences, three have masonry or part masonry fences, two other lots have a side fence of 'sandstone' Colorbond, facing Lennon Street, with one of these opposite the rear chain mesh fence of the car business.
On the site is a 19,170m² building of sawtooth roof design formerly used for the sale and distribution of vehicle and machinery parts and supplies. The building faces Walter Road West and, at the rear, is a bitumen carpark for 750 cars and a service area with a boundary to Lennon Street and to Wellington Road where vehicles gain access.

Background

On 26 May 2010, the City granted planning approval for the redevelopment of the building on the site as a market, comprising numerous small tenancies. The approved plans for the development showed a 2.4 metre high masonry pier and precast concrete panel fence along the entire northwestern boundary of the site. The approved plans had a note which read 'horizontal pre-cast panels reused from existing Coventry warehouse'.
Following exchanges between the parties, to be discussed further below, on 8 November 2011 the respondent resolved to add an additional condition to the approval (condition 45) which provided:
A precast panel and masonry pier fence in accordance with the Development Approval dated 25 May 2010, and plans dated 8 April 2010 is to be constructed to Lennon Street and PAW lot boundary.
The fence is to be installed and completed by 1 March 2012 to the satisfaction of the City of Bayswater. A temporary Colorbond fence to be installed in the intervening period.
The applicant then erected a 2.1 metre high Colorbond fence along the boundary of the site with Lennon Street and the walkway.
On 16 March 2012, the City wrote to a director of Strzelecki Holdings Pty Ltd, the company which lodged the original application for the development on the site and which has common directors with the applicant, stating, among other matters, the following:
… It is further noted that the date for compliance of condition 45 of the approval was passed. The site visit undertaken by City staff on 6 March 2012 has identified that the masonry fence to Lennard Street and the PAW has not been constructed, nor has a building licence been submitted.
The City respectfully requests that either the site be brought into compliance with the planning approval dated 25 May 2010 and 14 November 2012 or a development application be received addressing the outstanding matters within 14 days of the date of this correspondence, namely 29 March 2012.
On 18 June 2012, the respondent received an application for approval to commence development of a '1.8m high' sandstone 'Colorbond fence'. It was agreed between the parties that the fence, as erected, is in fact 2.1 metres in height, and that the application should have properly referred to a 2.1 metre high Colorbond fence.
On 25 July 2012, the respondent refused the fence application for the following reasons:
1.The previously approved precast panel and masonry pier fence is considered to be more appropriate than the Colorbond fence in relation to the scale and nature of the development and the amenity of the area.
2.The Colorbond fence is considered to unduly affect the amenity of the area.
3.The Colorbond fence is considered to be inconsistent with the orderly and proper planning of the area.
4.The precast panel and masonry pier fence forms an integral component of the development and is considered to be more consistent with the City's vision for the Morley City Centre.
The applicant now has before the Tribunal an application for review of the respondent's decision to refuse the Colorbond fence application.

Planning framework

The site is within the boundary of City of Bayswater Town Planning Scheme No 23 Morley City Centre Scheme (TPS 23 or Scheme). Clause 1.2 of TPS 23 states that the purpose of the Scheme is to implement the recommendations of the Morley Regional Centre Structure Plan. All land within the Scheme Area, including the site, is zoned Morley City Centre except for several lots which are reserved for a specific purpose. At cl 1.10.1 the general objectives of TPS 23 include:
g)to provide an effective means of determining the urban design and visual quality of the Scheme Area[.]
Clause 1.10.2 of TPS 23 lists specific objectives and these include:
e)to encourage and facilitate the provision of certain infrastructure works including but not limited to adequate public services such as transportation, streetscape improvements, pedestrian movement system, communication, drainage, underground power, public utility services, open space and public parks;
…
l)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[.]
The site is within 'Precinct 2A: Coventry's Central' at cl 5.6 of TPS 23. Precinct 2A was included in TPS 23 by amendment No 6 gazetted on 5 March 2010. This amendment provides specifically for the creation of the Coventry Market development as promoted by the applicant. No specific mention of fencing is included in cl 5.6 of TPS 23
The residential properties to the north of Lennon Street are also zoned Morley City Centre and under cl 5.5 of TPS 23 are within 'Precinct 1: Lovegrove'. The listed uses for Precinct 1 are essentially residential in nature.
Part 4 of TPS 23 includes various provisions including:
4.4.1In 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.
…
4.7.3All land and buildings shall be so used and maintained as to preserve the amenity of the Precinct in which they are situated[.]
In October 2010, the City adopted the Morley City Centre Masterplan (Masterplan). The purpose of the Masterplan is stated to be as follows:
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.
At page 52, the Masterplan emphasises the need for 'a more attractive, active and cohesive built environment in the city centre' and at page 56, 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'.
In conjunction with amendment No 6 to TPS 23, consultants for the applicant prepared a Scheme Report (Amendment 6 Scheme Report) dated August 2008. The Amendment 6 Scheme Report referred to the preparation of an Outline Development Plan (ODP) for Precinct 2A, and at page 21 said:
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[.]
The ODP (eventually dated March 2010) prepared by the applicant's consultants stated on page 13:
The proponents are aware of the quieter, residential area to the north of the site across Lennon Street. Where car parking is being proposed, an increased level of site and verge landscaping will be applied which will assist in ameliorating any possible impacts which might be associated with this use, on the residents of Lennon Street. This landscaping is also proposed to include a masonry/tilt-up screen wall to a height of up to 2.0 metres, which will be designed with architectural articulation to provide a level of interest.
The parties also made reference to City of Bayswater Fencing and Floodlighting Local Law (Fencing Local Law) gazetted on 22 July 1997. Clause 7 of the Fencing Local Law includes in the list of materials as suitable for fencing:
… 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.
Clause 12 of the Fencing Local Law states:
Maintenance of Fences
An owner or occupier of land on which a fence is erected shall maintain the fence in good condition and so as to prevent it from becoming dangerous, dilapidated, unsightly or prejudicial to the amenity of the locality.

Issues

From the respective statements of issues, facts and contentions filed by the parties, the Tribunal has identified that the issue to be determined in this matter is:
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 the Colorbond fence on the amenity of the area.

Discussion

Orderly and proper planning and the public interest

In determining the planning merits of a development, the Tribunal is required by the dictates of orderly and proper planning to give proper consideration to sound town planning principles and to the local planning scheme and related planning documents that set out the procedures to be followed and the planning objectives to be achieved. In doing this it is important to have regard to the particular features of the proposed development and the locality where it will be sited.
The respondent said that having a Colorbond 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. The applicant disagreed, arguing that the Colorbond fence was, as required under cl 5.4.4(a) of TPS 23, 'generally in accordance' with the ODP prepared for Precinct 2A, and therefore achieved the objectives for TPS 23.
The Tribunal, in considering this matter, was mindful that to establish whether a particular development was 'generally in accordance' with an ODP, or other planning instrument, requires an assessment of fact and degree: Teoh and City of Stirling [2008] WASAT 55 at [50]. In Undervan Holdings Pty Ltd and Western Australian Planning Commission [2012] WASAT 49, the Tribunal, constituted as in this matter, at [61], adopted from Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489 at [9] [13], that:
…
'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. …
It is further stated that:
…
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. …
Clause 4.4.1(i) of TPS 23 provides that when considering nonresidential development, regard shall be had to 'the height, position, form and materials of fences …'. In this matter the development is a fence, but it is associated with a commercial development, the Coventry Markets.
Clause 5.6 of TPS 23, which is specifically directed to the development of the site, makes no specific mention of fencing. 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. Clause 4.7.3 of TPS 23 requires that '[a]ll land and buildings shall be so used and maintained as to preserve the amenity of the Precinct in which they are situated'.
The Masterplan, endorsed October 2010, can be described as indicative and aspirational. It is said at page 56 that 'repairing the streets through careful design of the public and private interface will integrate and redefine the character of the Morley City Centre.
The Masterplan refers in several places to the Coventry Markets. The emphasis is on the development of the markets to revitalise the locality through design of the Walter Road West frontage, a link through Progress Street to the vicinity of the Galleria shopping centre and road and footpath works at the Wellington Road corner. The illustrations, however, show about five different development concepts for the site and these appear to show access between the site and Lennon Street. The Masterplan refers to an 'active, attractive and cohesive' built environment and 'enhancement of streetscapes', but provides no guidance on how to treat a physical and visual barrier between residential and commercial as now required for the Lennon Street frontage of the site.
Ms Smith said the Colorbond fence could not be considered to 'enhance the streetscape' because it was not a 'high quality' material. Mr Wilkes said the overall development of the site, which was more than just the Lennon Street fence, satisfactorily addressed the urban design objective of the Masterplan by its overall contribution to the Morley City Centre.
The Amendment 6 Scheme Report, at page 21, makes reference to the inclusion in the ODP of details of how the nearby residential development in Lennon Street will be buffered from the site by 'use of masonry walls' and landscaping.
The ODP, which was prepared to guide development of Precinct 2A, and in particular the site, at page 13 expresses an intent that 'the proposed activities on this site do not compromise the amenity of more sensitive nearby (residential) environments, across Lennon Street'. To achieve this, the ODP states:
… an increased level of site and verge landscaping will be applied which will assist in ameliorating any possible impacts which might be associated with this use, on the residents of Lennon Street. This landscaping is also proposed to include a masonry/tilt up screen wall to a height of up to 2 metres, which will be designed with architectural articulation to provide a level of interest.

To be 'generally in accordance' with TPS 23 objectives and the ODP in the context of the planning for the Morley City Centre, the Tribunal must consider whether 'the departures identified by the responsible authority are sufficiently confined and otherwise acceptable'.
The significant departure from the ODP is the use of Colorbond sheetmetal for the fence along Lennon Street and the walkway. The applicant correctly stated that the question is not whether masonry is better than Colorbond, but rather whether Colorbond can be approved because the resultant fence does achieve the planning objectives for the locality and the Morley City Centre. The fencing material is directly relevant to whether the amenity and streetscape objectives of the planning instruments are achieved and the amenity impact of the fence is addressed in full below.
The respondent further raised in support of the respondent's position in the matter what counsel described as a 'public policy or public interest argument'.
The respondent referred to a letter to the City from the applicant's architect, John L Silbert and Associates, dated 14 October 2011, attaching plans and seeking approval, on the applicant's behalf, for a list of changes to the development originally approved by the City in May 2010. The list included changes to layout and uses internal to the building and external changes, including to landscaping and features along Walter Road West. Also included in the letter by the architect was the proposal to erect a Colorbond fence along the Lennon Street boundary to allow the markets to be securely fenced by the proposed opening in late November 2011. The architect said that, due to an oversight, the masonry fence could not be designed, approved and constructed in the time available. The architect went on to say:
Should the Council deem the finished product unacceptable, Coventry Square WA undertakes to replace the fence with a masonry structure following the 201112 school holiday period.
Counsel for the respondent submitted that:
The next fact of relevance is that Council considered the application to amend at its special meeting of 8 November 2011 and it resolved, among other things, to add an additional condition 45. That required the panel and masonry pier fence to be constructed and allowed only the temporary the Colorbond fence to remain as the temporary structure in the intervening period which required the initial fence to be installed by no later than 1 March 2012. (T:222; 29.08.13)
The respondent pointed out that the applicant took advantage of the City's approval, built the Colorbond fence and then did not replace it with a masonry fence. The respondent said that while it was initially intended that concrete panels removed from the proposed market building be used for the fence, it would have been possible for the applicant to obtain replacement panels, or to design an alternative masonry structure. The applicant simply chose not to do so. The respondent further commented:
The City relied on that undertaking when approving the temporary construction of the Colorbond fence, and the applicant, we say, took advantage of that. Those facts lead to the following proposition. We say it is not in the public interest, nor consistent with public policy in all those circumstances, to allow the applicant to resile from that undertaking. If the applicant is allowed to do that, it will set a highly undesirable precedent by suggesting that developers have a licence to say what they like in order to induce a local government to at least grant temporary approval without having to face the consequences of accepting the burden of that undertaking.
On the flip side, to allow the applicant to resile from its undertaking would make it less likely for other local governments in the future to grant a temporary approval for a development where perhaps one should be granted in the circumstances of a particular case[.] (T:223; 29.08.13)
…
We say that to hold the applicant to its undertaking is consistent with one of the main objectives of the tribunal which is to make or review a decision fairly and according to the substantial merits of the case. It's also, we say, the correct and preferable decision in all of the circumstances. In reviewing the council’s decision, the tribunal stands in the shoes of the council and it must follow that the applicant's undertaking to the council is relevant consideration for this tribunal[.] (T:225; 29.08.13)
In Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 at [23], Senior Member McNab of the Tribunal adopted with approval the finding in Rohrlach v City of Unley (2011) SAERDC 19, that an applicant may seek multiple approvals for multiple developments on the same land and that regardless of there being multiple applications, a planning authority should not be diverted from turning its mind to what is proposed in each application. This Tribunal, respectfully, would also follow this opinion.
In this matter, the Tribunal would comment that whether or not the Colorbond fence was removed when the temporary approval lapsed in March 2012, it would still have been open to the applicant to apply for planning approval to erect a Colorbond fence, notwithstanding that there was in place an approval that had as a condition, the erection of masonry fence on the Lennon Street boundary. This circumstance was reflected in the City's letter to the 'Strzelecki Group' of 16 March 2012 in which the City noted that the date for compliance with condition 45 had passed, and stated:
The City respectfully requests that either the site be brought into compliance with the planning approval dated 25 May 2010 and 14 November 2012 or a development application be received addressing the outstanding matters within 14 days of the date of this correspondence, namely 29 March 2012. (Exhibit 17)
In the event, the applicant lodged the application for retrospective planning approval for the Colorbond fence in June 2012.
Mr Holtham said he did not know of the requirement that the Colorbond fence only be temporary and that it be removed by March 2012. The Tribunal is satisfied, however, that the architect engaged over the full life of the project was aware of this requirement, as was Strzelecki Holdings Pty Ltd which received the Council's decision letter setting out condition 45. Notwithstanding that the internal communication arrangements of the applicant are difficult to understand, it has still remained open for the applicant to apply for retrospective planning approval for the Colorbond fence.
The respondent clearly accommodated the applicant in allowing the temporary fence so that the development could be open to the public by Christmas 2011. It might be, as suggested by the respondent, that local governments might be wary of granting a temporary approval for a development using materials that the local government would not want to be permanent on the site. This, however, would not prevent an applicant from, in certain circumstances, applying for a subsequent approval for the use of that material permanently as part of the development.
The Tribunal does not consider there is a compulsion on the applicant to, as a public duty, comply to the letter with the ODP and Amendment 6 Scheme Report because Strzelecki Holdings Pty Ltd and its consultants were the authors of those reports. Once adopted, the ODP and Amendment 6 Scheme Report are to be applied as a guide by the decisionmaker, irrespective of whether a development application is from the current or future applicants.
The Tribunal is not here required to draw conclusions from the applicant's steps prior to and after the granting of the temporary approval of the Colorbond fence, or to address the respondent's regret at how events unfolded.
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.

The Colorbond fence and the amenity of the area

Ms Smith said 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. 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.
As stated above, the applicant said that the question was not whether a masonry fence would result in a better streetscape than would a Colorbond fence, but rather whether the Colorbond fence was an acceptable element in the streetscape of Lennon Street and did not have any adverse impact on the amenity of the residents.
Counsel for the applicant summarised from Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, the test for impact on amenity as being in three parts:
(i)an objective assessment of the existing amenity;
(ii)the manner in which the proposed use will affect the existing amenity; and
(iii)the degree of impact on the locality.
The parties agreed that an assessment must also be made of the impact of a development on future amenity: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [20].
The Tribunal considers that, as required by orderly and proper planning, it is also necessary to test the amenity created by the Colorbond fence against the amenity objectives in the planning instruments adopted to guide the exercise of discretion when determining a development application in the Morley City Centre and, more particularly, at the boundary between Precinct 2A and the residential area of the Livingstone Precinct. The broad amenity objectives of these documents cannot simply be ignored, otherwise they would serve no useful planning purpose in this respect.
The Tribunal would comment that if the only test were to compare the amenity impact of the Colorbond fence against that of either the previous chain mesh fence or no fence, then the Colorbond fence would be acceptable because it reduces the impacts from the markets carpark on the residents of Lennon Street.
There was no dispute that, for the residents of Lennon Street, the Colorbond fence provided a visual barrier to a view of the carpark and prevented light spill from the site.
The Tribunal also determined that the fence provides a sufficient noise barrier between the site and the houses in Lennon Street. The Tribunal had the benefit of evidence from noise experts, Mr Daniel Lloyd, called by the respondent, and Mr Timothy Reynolds, called by the applicant. The noise experts agreed that the 2.1 metre Colorbond fence, as erected, would be sufficient to reduce noise from vehicles on the site carpark and to satisfy the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) if the various uses on the site operated as described by the applicant. The experts made the comment that, if the size of trucks and forklifts using the site in the future was increased, then this may cause noise in certain circumstances to exceed an acceptable level. The Tribunal considers that the fence as built, provides a sufficient noise barrier for the current use of the site.
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.
The planning and landscape witnesses referred to the unacceptable streetscape impact of the chain mesh fence at the western end of Lennon Street. There was no dispute that the site had once had such a fence along Lennon Street and needed to be replaced to achieve the streetscape and amenity objectives of the ODP and TPS 23. The parties did not agree that the erected Colorbond fence achieved those objectives. The respondent's Fencing Local Law assisted only in that it includes Colorbond material in a list of materials considered suitable for fencing. The list also included materials such as chain mesh or fibro cement that the witnesses agreed, for planning reasons, would be unsuitable as fencing on the Lennon Street boundary of the site.
Ms Smith said that the Colorbond fence had an adverse impact on the streetscape and therefore upon the amenity of the residents of the houses on the opposite side of Lennon Street. She considered the fence was 170 metres of unattractive material, unrelieved by variety or interest. Ms Smith was of the view that Colorbond was a material that was not of high quality, was lightweight and better suited to internal suburban fences rather than along a road frontage boundary within the Morley City Centre.
Mr Croudace and Mr Wilkes both considered the impact of the Colorbond fence on Lennon Street to be, at worst, neutral. They pointed out that Colorbond material could be seen in sections of fencing on the north side of the road and to the south beyond the fence in the visible upper parts of the main building on the site.
Mr Croudace said that the most important element in the existing streetscape was the line of mature trees on the verge along the site boundary for the full length of Lennon Street. Mr Gomboc was of the view that a masonry fence of prefabricated concrete panels would not adversely affect the existing trees. Mr Croudace said that a masonry fence would require footings, even if precast panels were used, and these might have a severe impact on the root zone under the canopy. It is apparent that great care would have to be taken if the fencing required by condition 45 of the development approval were to be implemented.
Mr Croudace expressed the opinion that when the fence was viewed from an angle the tree trunks of the mature trees along the verge drew the eye and broke up the line of the fence. He also said that in the future the required landscaping in the verge would mature and further soften any impact on the streetscape.
In commenting upon future amenity, Ms Smith expressed concern that the Colorbond sheets would become unsightly because they were easily damaged by vandals and she expressed concern that the vines planted along the fence were growing through the joins and separating the panels. Ms Smith said this meant that the future amenity of Lennon Street would be unsatisfactory because the fence would deteriorate over time.
Mr Holtham said that damaged panels would be replaced, as had occurred in the past, and that maintaining the standard of the fence would be part of the maintenance program currently undertaken for the whole site. The Tribunal notes that the requirement to maintain a fence in good condition under cl 12 of the Fencing Local Law would be relevant in that regard.
Ms Smith argued that TPS 23, as supported by the Masterplan, was directed to the rejuvenation of the Morley City Centre characterised by high quality urban design. This, it was said, was dependent upon the delivery of current and future projects that contribute to high quality urban design and streetscapes. Ms Smith said that Amendment 6 to TPS 23, which created Precinct 2A in which the site is located, emphasised this objective. It was Ms Smith's submission that the markets development was approved because it was consistent with this objective and the Lennon Street boundary fence was considered a integral part of the development. Ms Smith said the Colorbond fence was effectively the opposite of this intention, being a low quality urban design outcome.
The applicant said Colorbond was strong, engineered to Australian Standards, widely used and common to the locality.
It was the concern of the respondent that an approval would set a precedent for departing from the Masterplan by allowing development using materials not suited to delivery of high quality urban design.
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.
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.
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.
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.
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.

Conclusion

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.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The refusal of the planning application by the City of Bayswater, dated 25 July 2012, is endorsed.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER