Cunningham v Watts

[2000] WASC 296

CUNNINGHAM & ANOR -v- WATTS & ANOR [2000] WASC 296

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 296
Case No:	CIV:2559/2000	Heard:	22 NOVEMBER 2000
Coram:	STEYTLER J	Delivered:	22/11/00
No of pages:	12	Judgment Part:	1 of 1
Result:	Application for injunction dismissed
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Parties:	DANIEL BENEDICT CUNNINGHAM JENNIFER ANNE CUNNINGHAM MARY LYNDSAY WATTS TOWN OF COTTESLOE
Catchwords:	Town planning Approval of development in form of "privacy screen" Whether screen a "building" for the purposes of the Town of Cottesloe Town Planning Scheme No 2 Whether notice of development required to be given to adjoining landowners Words and phrases "building" Whether "privacy screen" is a "building" for the purposes of the Town of Cottesloe Town Planning Scheme No 2
Legislation:	Nil
Case References:	American Cyanamid Co v Ethicon Ltd [1975] AC 396 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Somerville v Dalby (1990) 69 LGRA 422 City of Noarlunga v Fraser (1986) 61 LGRA 326 Day v Pingden Pty Ltd (1981) 148 CLR 289 Pearson v Leichardt Municipal Council (1997) 93 LGRA 206 Scurr v Brisbane City Council (1973) 133 CLR 242 State Transport Authority v Apex Quarries Ltd [1988] VR 187 Warringha Shire Council v Sedercic (1987) NSWLR 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CUNNINGHAM & ANOR -v- WATTS & ANOR [2000] WASC 296 CORAM : STEYTLER J HEARD : 22 NOVEMBER 2000 DELIVERED : 22 NOVEMBER 2000 FILE NO/S : CIV 2559 of 2000 BETWEEN : DANIEL BENEDICT CUNNINGHAM

JENNIFER ANNE CUNNINGHAM
Plaintiffs

AND

MARY LYNDSAY WATTS
First Defendant

TOWN OF COTTESLOE
Second Defendant

Catchwords:

Town planning - Approval of development in form of "privacy screen" - Whether screen a "building" for the purposes of the Town of Cottesloe Town Planning Scheme No 2 - Whether notice of development required to be given to adjoining landowners

Words and phrases - "building" - Whether "privacy screen" is a "building" for the purposes of the Town of Cottesloe Town Planning Scheme No 2

Legislation:

Nil

(Page 2)

Result:

Application for injunction dismissed

Representation:

Counsel:

Plaintiffs : Mr A Roberts
First Defendant : Mr M J Hardy
Second Defendant : Mr L A Stein

Solicitors:

Plaintiffs : Minter Ellison
First Defendant : Clayton Utz
Second Defendant : Watts & Woodhouse

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

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Somerville v Dalby (1990) 69 LGRA 422

Case(s) also cited:

City of Noarlunga v Fraser (1986) 61 LGRA 326
Day v Pingden Pty Ltd (1981) 148 CLR 289
Pearson v Leichardt Municipal Council (1997) 93 LGRA 206
Scurr v Brisbane City Council (1973) 133 CLR 242
State Transport Authority v Apex Quarries Ltd [1988] VR 187
Warringha Shire Council v Sedercic (1987) NSWLR 335

(Page 3)

1 STEYTLER J: The plaintiffs in these proceedings are the joint owners of property situated at number 105 Grant Street, Cottesloe. The first defendant is the owner of an adjacent property, number 103 Grant Street, Cottesloe.

2 In February 2000 the plaintiffs applied for planning approval from the Town of Cottesloe ("the Town") to extensively renovate their existing dwelling. Planning approval was granted by the Town for the renovations in about March 2000. As part of the renovations, the ground floor verandah at the front of the plaintiffs' residence was extended to permit improved north-westerly views across the front portion of the defendant's property towards the Indian Ocean.

3 On 15 August the Manager, Development Services, for the Town, Mr Stephen Sullivan, attended the plaintiffs' property. He inspected the property in order to enable him to assess an application for planning approval ("the first application") which the Town had received in relation to the first defendant's property. He told the plaintiffs that the application sought approval to erect a privacy screen on the first defendant's property.

4 Mr Daniel Cunningham, the male plaintiff, has said in his affidavit sworn on behalf of the plaintiffs that on 15 August this year, subsequent to being informed of the first application by Mr Sullivan, he attended the offices of the Town to inspect plans lodged as part of the first application. He says that neither he nor his wife had received any notification of that application prior to his discussion with Mr Sullivan on 15 August 2000 and that they received no formal notification of that application subsequent thereto.

5 He also says that the plans which he inspected show that the first application sought approval for the erection of a large trellis screen on the front portion of the first defendant's property. He was concerned that the screen would severely interfere with the north-westerly views from the ground floor verandah of the plaintiffs' property.

6 He says in his affidavit that the Development Services Committee of the Town considered the first application at its meeting on 21 August. He attended that meeting and expressed his concerns in respect of the plans which had been lodged as part of the first application. He also expressed his objection to the first application because of the impact a screen would have on the views from the plaintiffs' property and also because of the effect of the screen on the amenity of the street.

(Page 4)

7 By letter dated 24 August the plaintiffs lodged a written objection to the first application.

8 The first application was considered by the Council of the Town at its meeting on 28 August. The Council passed a resolution granting planning approval for the trellis screen subject to conditions, one of which was a condition requiring that the screen be suitably designed to meet the relevant standards for wind loading applicable to the district.

9 On or about 22 September 2000 Mr Cunningham received a letter from the Town bearing that date which, he says, outlined the following: (a) an engineer had advised that the lattice screen would be an unacceptable form of material to withstand the natural weather elements; (b) revised plans were submitted showing a louvred privacy screen instead of the previously proposed lattice; (c) legal advice obtained by the Town suggested that because of the change to the structure, a new development application should be made; (d) a new application was submitted to Council for a privacy screen of identical height and dimensions to that in the initial development application; and (e) the subsequent development application was approved under delegated authority by the Manager, Development Services, on 25 September 2000.

10 Mr Cunningham says that he subsequently obtained from the Town what he believed to be an extract of the minutes of a meeting of the Town's Council at which the authority to issue planning approval was delegated to the Town's Manager, Development Services, Mr Sullivan That document, which is exhibited to his affidavit, records that in accordance with the provisions of cl 7.10 of the text to the Town of Cottesloe Town Planning Scheme No 2 ("the Scheme"), Council delegated to the Manager, Development Services, and the Chief Executive Officer the authority to determine those applications for planning consent detailed in cl (1), and subject to the provisions of cl (2), the functions which are detailed in cls (3) and (4). Clause (1) provides for the extent of delegation and reads as follows:

"Subject to the provisions of clause (2), the authority to determine applications for planning consent shall be restricted to the following types of application:

• single houses;
• additional dwelling;
• no more than two grouped dwellings or multiple dwellings;
• home occupations;

(Page 5)

• minor additions and alterations to existing unit developments; and
• minor additions and alterations to existing unit developments; and
• minor additions and alterations to existing commercial premises."

11 I was told by Mr Roberts, who appeared on behalf of the plaintiff, that all of these expressions are defined in the Residential Planning Codes which provide a dictionary for aspects of the Scheme, but that a privacy screen is not expressly within any of those definitions.

12 By cl (2) various conditions of delegation are set out. One of these is to the effect that it is sometimes a requirement, either of the Scheme or the Residential Planning Codes, that written notice of an application be given in order to create an opportunity to submit comments in writing to the Council, and that in such cases the Manager, Development Services, or the Chief Executive Officer must be satisfied that the required notices were served and that no written submissions expressing objection were received.

13 Mr Cunningham goes on to say, in his affidavit, that prior to receipt of the Town's letter dated 26 September, neither he nor his wife received any notification of the new application for development of the privacy screen, which he refers to as the second application, which was approved on 25 September 2000. He says that the letter from the Town was the first occasion upon which the plaintiffs were made aware of the second application.

14 He has also said that, from his inspection of the plans forming part of the second application, he believes that the privacy screen will be approximately 10.5 metres wide and 5.1 metres high. He says that it will contain a number of steel louvres which in certain sections will not be able to be seen through. While other sections will allow visibility, he says, they will only permit this at a certain angle through the louvres.

15 He has deposed also to the fact that from his inspection of the plans forming part of the second application, and given that it will be constructed in the same location and with the same dimensions as part A of the trellis screen referred to in the first application, he believes the privacy screen will severely interfere with the view enjoyed from the ground floor verandah of the plaintiffs' property.

(Page 6)

16 He says that on about 9 November 2000 the cement footings for the privacy screen the subject of the second application were laid on the first defendant's property and he believes that the first defendant will, in the absence of an injunction, proceed to complete the privacy screen.

17 He has also deposed to the fact that he has received written advice from two certified practising valuers that the privacy screen will cause a significant diminution in the value of the plaintiffs' property. He has exhibited to his affidavit a letter from those valuers suggesting that the screen could have a negative impact in the order of 30 per cent of the underlying land value.

18 It is essentially on the strength of that evidence, as supplemented by an affidavit sworn by Mr Sam Barbaro on 17 November 2000 to which it is unnecessary for me to refer, that the plaintiffs seek the relief set out in the chamber summons.

19 Essentially they ask for an order that the first defendant be restrained and an injunction be granted restraining her from taking any further step or doing anything whatsoever to further implement or give effect to the planning approval purported to have been granted by the second defendant to the first defendant on 25 September 2000 for development of the privacy screen to which I have referred.

20 The first defendant has sworn an affidavit in opposition. It is again unnecessary for me to refer to that affidavit in any detail other than to say that it effectively confirms what is proposed to be done by the first defendant save that she has said that the proposed trellis screen will be 1.5 metres above the extended verandah of the plaintiff's property.

21 There is also an affidavit filed by Mr Stephen Sullivan on behalf of the second defendant. He is, as I have previously mentioned, the Manager, Development Services, of the second defendant and he deposes to the fact that he has been so since 1995. He says in his affidavit that in practice he determines applications relating to all aspects of single residential development including building extensions and additions, pergolas, gazebos, garages, detached games rooms, garden sheds and other outbuildings.

22 He says that the existence of the delegation fulfils an important function in that it allows the expeditious determination of a range of planning applications without them being required to be referred to the Council and also reduces the number of applications required to be considered by the Council.

(Page 7)

23 He has said, in regard to the first application, that although the application for approval of the privacy screen proposed to be erected on the single residential property of the first defendant could have been determined by him acting under the instrument of delegation to which I have referred, he chose to refer that application to the Council for determination. He says that it is not unusual for him to do so where he considers that there is good reason for doing so and that the good reason in this case was the fact that he had not previously received an application of that nature.

24 In regard to the contention of the plaintiffs that no notification was given of the second application and that no formal notification was given of the first application, he deposes, without objection from the plaintiffs, to his belief that the Town was not required to give notice to adjoining owners of either application and says that the requirement to give notice arises under cl 7.1.5 of the Scheme. He has set out in his affidavit in, I may say, inadmissible form the arguments why this might be so.

25 In essence, the position taken up by the Town as reflected in Mr Sullivan's affidavit is that the privacy screen the subject of the first application and of the second application was not considered to be "a building" as defined. He has said in his affidavit that in practice there is a wide range of structures for which planning approval can be sought but which are not considered to be buildings in respect of which notice is required to be given to adjoining owners. These, he says, include not only those which are referred to in the scheme itself, namely, single-level, low-profile, single houses and extensions, boundary fences, pergolas, garden sheds and certain swimming pools, but also single-storey games rooms, cabanas, gazebos, courtyard walls and others.

26 He has expressed the view, which has (perhaps more appropriately) been echoed in submissions by counsel for the Town, that it would be an absurd result if notice was required to be given to adjoining owners of the proposed building of a privacy screen when notice is not required to be given in the case of more substantive structures. He has also deposed in his affidavit to the fact that, notwithstanding that no formal notice was given to the plaintiffs concerning the first application, the plaintiffs were given the opportunity to address the Development Services Committee of the Council and did so on 21 August 2000 concerning their objection to the proposed privacy screen. He says that he was present at that meeting and heard the objection, as he was at the meeting on 28 August 2000 when Mr Cunningham again voiced an objection.

(Page 8)

27 He also heard the submissions which were advanced by the plaintiffs' planning consultant, Mr Lex Barnett. He says that, in addition, he considered and circulated to all councillors the letter of objection addressed to him dated 24 August 2000. He says that when he considered each application, he was well aware of the plaintiffs' objection to the proposed privacy screen and that when he considered the second application, he was aware of the objection which had been raised in connection with the first application and took that objection into account.

28 The position in respect of an application of this kind is accurately summarised in the plaintiffs' written outline of submissions filed in support of their application. The Court is of course required to be satisfied that there is a serious question to be tried (Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153). It is generally no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit or to decide difficult questions of law (American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 407). If damages would provide adequate compensation an interlocutory injunction would not normally be granted, and the proper test is whether it is just in all the circumstances that a plaintiff should be confined to a remedy in damages.

29 As to the serious question to be tried, the plaintiff contends that the second approval is unlawful, invalid and of no force and effect on four grounds. The first is that the first defendant failed to comply with cl 7.1.5 of the Scheme which required written advice to be given to the plaintiffs sufficient to enable them to comment on the proposed privacy screen. The second is that the terms of the authority delegated to Mr Sullivan did not permit him to grant planning approval for the proposed privacy screen. The third, by way of alternative to the second, is that Mr Sullivan was unable to grant planning approval until he was satisfied that the plaintiffs had been given the required notice and that no written submissions expressing an objection had been received from them. The fourth is that Mr Sullivan failed to take into account a consideration relevant to his consideration of the first defendant's application for planning approval to develop a privacy screen.

30 I will deal with each of these in turn.

31 As to the first contention, cl 7.1.5 of the Scheme provides:

"An applicant who applies for approval to commence development of a building, other than a single level, low profile

(Page 9)

single house or extensions thereto, shall advise in writing any adjoining owner that plans of the proposal are available at Council's offices during normal office hours for inspection. The advice to the adjoining land owners shall be forwarded within seven days of lodging the application with the Council and the applicant shall advise Council in writing of those adjoining owners who have been notified. The advice to adjoining owners shall be deemed to have been given if forwarded by certified mail to the address recorded in Council's rating records. Included in the advice to adjoining owners shall be the information that should they wish to comment on the proposed development they shall provide comments in writing to Council within 14 days of the date of the posting of the applicant's advice or such extended period accepted by Council. A copy of the advice and replies shall be submitted to Council before a final decision is made on the application."

32 The word "building", where it appears in cl 7.1.5 of the Scheme, is defined in schedule 2 thereof to have the same meaning as given to it in and for the purposes of the Residential Planning Codes. The Residential Planning Codes are in turn referred to in cl 5.2.1(a) and schedule 2 of the Scheme and are defined as those which are set out in Appendices 2 and 3 to the Statement of Planning Policy No 1, together with any amendments thereto as published in the Government Gazette on 30 January, 1985.

33 Those Codes in turn define the word "building" to mean:

"any structure or appurtenance thereto whether fixed or moveable, temporary or permanent, placed or erected upon land, and the term shall include dwellings and buildings appurtenant to dwellings such as carports, garages, verandahs and returning walls, but shall exclude a boundary fence, pergolas, garden sheds and the like, and swimming pools where no part is more than 600 mm above surrounding ground level."

34 It is, I think, common cause between the parties that a screen of the kind under consideration in the second application is at least a structure and the real issue is whether it is one which is excluded under the definition of "building". The plaintiffs submit that it does not fall within the exclusion and the defendants submit that it does.

35 It seems to me that there is a triable issue in this respect.

(Page 10)

36 I am not persuaded that the contention of either party is unarguable, however it does seem to me that the issue raised by the plaintiffs in this regard can best be described, at least as I am presently informed, as raising only a weak triable issue.

37 It seems to me that the definition of the term "building" is such as, on the face of it at least, to leave open a strong argument that a privacy screen, in common with, for example, a boundary fence, is intended to be excluded. That argument is lent support by the fact that the definition distinguishes between structures that are "appurtenant" to dwellings and those which are not and also generally between structures which one would normally expect to be fixed to dwellings and those which one would generally not expect to be so fixed.

38 It also seems to me that when regard is had to the terms of the Scheme and to those of the Residential Planning Codes, when read together, it would be difficult to regard a privacy screen as being required to conform to the Residential Planning Codes or to be the subject of them. One illustration of this is the absurdity, for example, of requiring a privacy screen to be set back a minimum distance from the boundary. Such a screen is, in that respect, no different than a boundary fence. Consequently, while I am prepared to find that there is a triable issue in this respect it is, as I have said, on the face of it a weak one.

39 That brings me next to the issue of delegated power. The plaintiffs submit with some force that the delegation could only have come about in one of two ways. The first is by the terms of cl 1(c) of the first approval. The second is by way of the general delegation on 22 May 2000.

40 Clause 1(c) of the first approval permitted the Manager, Development Services, to approve revised plans in respect of the trellis screen. While I accept that it is arguable that the terms of that delegation might be wide enough to encompass the second application, it seems to me that there is at least a strong triable issue in that respect in the sense that a Court might well come to the conclusion that the screen of the type now under consideration is sufficiently different from a trellis screen to take it outside the ambit of the earlier delegation. However, the answer to that question might become clearer after evidence has been led as to the nature of each screen and as to the matters which led to the conditional granting of delegated authority to the Manager, Development Services.

41 As to the second source of delegated power, being the instrument of delegation constituted by the minutes of 22 May 2000, the plaintiffs

(Page 11)

contend that this document did not go so far as to delegate authority in respect of the approval of a screen of the kind contemplated by either of the two applications. I have earlier set out the terms of the Council resolution. The contention advanced on behalf of the plaintiffs is that none of the matters referred to in cl (1) thereof encompasses a privacy screen.

42 Once again, while I am prepared to find that there is a triable issue in this respect, it seems to me to be only a weak one. The types of applications for development to which the delegation is expressed to apply encompass, as was pointed out by counsel for the second defendant, almost all types of residential use and development. Moreover cl 7.10.2 of the scheme provides that a delegation has effect "according to its tenor", and I find persuasive counsel for the second defendant's submission that the "tenor" of the delegation is that applications for development that relate to use and development for residential purposes are delegated to the Manager, Development Services.

43 Consequently, as I have said, it seems to me that, while there is a triable issue, the argument raised on behalf of the plaintiffs in this respect is not, at least on an initial view, a strong one.

44 The next argument which is made on behalf of the plaintiffs is that the Manager, Development Services, did not satisfy himself as regards the giving of notice and the existence or otherwise of any objections. It will be apparent from what I have already said that I consider that any triable issue in that respect is only a weak one as regards the need for notice of that kind and I will not repeat the reasons which I have previously given in that regard. I should add in any event that Mr Sullivan's affidavit evidence, to which I have earlier referred, goes a long way towards establishing his familiarity with the objections made on behalf of the plaintiffs.

45 The last argument which was made on behalf of the plaintiffs, so far as the merits are concerned, is that the Manager, Development Services, was required, when considering the application for the privacy screen, to have regard to the need to limit the height or location of buildings to preserve views and that, because of the view which he erroneously took to the effect that a privacy screen was not a building, he failed to do so. Once again it seems to me that this raises only a weak triable issue. I say this because of the views which I have already expressed as regards the proper construction of the word "building". Moreover, it seems to me that Mr Sullivan must have taken into account the question of height and the

(Page 12)

effect on the plaintiffs' views as this was the very subject matter of the dispute before him.

46 It follows from what I have said that while there are serious issues to be tried, the plaintiffs do not, at least on my present, and necessarily preliminary, view of the matters raised before me, have a strong case.

47 That brings me to the question of the balance of convenience. While ordinarily there is much to be said in favour of preserving the status quo in matters of this kind, the question of balance of convenience must be considered together with the view which is taken on the merits of the proceedings. That is to say, if there is a strong argument on the merits, there is, all other things being equal, more likely to be an exercise of discretion favourable to the applicants. If, on the other hand, there is an unfavourable view taken of the merits, there is less likely to be an exercise of discretion in favour of the applicants if, once again, all other things are equal.

48 In this case it seems to be common cause that if the foreshadowed screen should be erected, it can, should the plaintiffs succeed at trial, be removed. That being so, it seems to me that the only real downside for the plaintiffs if an injunction is not granted is the fact that, in the short term at least, their views will be affected, perhaps even seriously so. Equally, when regard is had for the position of the first defendant, her downside, if an injunction should be granted, will be that her privacy will, at least until the matter is finally determined, be affected.

49 In all of these circumstances (and having regard for the fact that there is, so far as I am able to see, no reason why a speedy trial should not be arranged) no sufficient basis has been made out for granting to the plaintiffs the injunctive relief which they seek. Because the plaintiffs' arguments on the merits are as I have said, weak, at least on a preliminary view, and because the balance of convenience appears to be more or less equal, it seems to me that the appropriate exercise of what is a very broad discretion (as to which see Somerville v Dalby (1990) 69 LGRA 422 at 433) is one which would see the injunction refused.

50 I consequently propose to refuse the plaintiffs' application.